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This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
NORTH CAROLINA
REGISTER
VOLUME 25 ● ISSUE 23 ● Pages 2478 - 2539
June 01, 2011
I. APPROVED RULES ........................................................................................ 2478 – 2515
Administrative Hearings, Office of
Administrative Hearings, Office of
Cultural Resources, Department of
Department
Environment and Natural Resources, Department of
Environmental Management Commission
Public Health, Commission for
Well Contractors Certification Commission
Health and Human Services, Department of
Social Services Commission
Occupational Licensing Boards and Commission
Dental Examiners, Board of
Midwifery Joint Committee
Medical Board
Opticians, Board of
II. RULES REVIEW COMMISSION ................................................................. 2516 – 2523
III. CONTESTED CASE DECISIONS
Index to ALJ Decisions ...................................................................................... 2524 �� 2531
Text of ALJ Decisions
10 DST 5350 ................................................................................................... 2532 – 2539
PUBLISHED BY
The Office of Administrative Hearings
Rules Division
6714 Mail Service Center
Raleigh, NC 27699-6714
Telephone (919) 431-3000
Fax (919) 431-3104
Julian Mann, III, Director
Camille Winston, Deputy Director
Molly Masich, Codifier of Rules
Dana Vojtko, Publications Coordinator
Julie Edwards, Editorial Assistant
Tammara Chalmers, Editorial Assistant
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
Contact List for Rulemaking Questions or Concerns
For questions or concerns regarding the Administrative Procedure Act or any of its components, consult
with the agencies below. The bolded headings are typical issues which the given agency can address,
but are not inclusive.
Rule Notices, Filings, Register, Deadlines, Copies of Proposed Rules, etc.
Office of Administrative Hearings
Rules Division
1711 New Hope Church Road (919) 431-3000
Raleigh, North Carolina 27609 (919) 431-3104 FAX
contact: Molly Masich, Codifier of Rules molly.masich@oah.nc.gov (919) 431-3071
Dana Vojtko, Publications Coordinator dana.vojtko@oah.nc.gov (919) 431-3075
Julie Edwards, Editorial Assistant julie.edwards@oah.nc.gov (919) 431-3073
Tammara Chalmers, Editorial Assistant tammara.chalmers@oah.nc.gov (919) 431-3083
Rule Review and Legal Issues
Rules Review Commission
1711 New Hope Church Road (919) 431-3000
Raleigh, North Carolina 27609 (919) 431-3104 FAX
contact: Joe DeLuca Jr., Commission Counsel joe.deluca@oah.nc.gov (919) 431-3081
Bobby Bryan, Commission Counsel bobby.bryan@oah.nc.gov (919) 431-3079
Fiscal Notes & Economic Analysis and Governor's Review
Office of State Budget and Management
116 West Jones Street (919) 807-4700
Raleigh, North Carolina 27603-8005 (919) 733-0640 FAX
Contact: Anca Grozav, Economic Analyst osbmruleanalysis@osbm.nc.gov (919) 807-4740
NC Association of County Commissioners
215 North Dawson Street (919) 715-2893
Raleigh, North Carolina 27603
contact: Rebecca Troutman rebecca.troutman@ncacc.org
NC League of Municipalities (919) 715-4000
215 North Dawson Street
Raleigh, North Carolina 27603
contact: Erin L. Wynia ewynia@nclm.org
Legislative Process Concerning Rule-making
Joint Legislative Administrative Procedure Oversight Committee
545 Legislative Office Building
300 North Salisbury Street (919) 733-2578
Raleigh, North Carolina 27611 (919) 715-5460 FAX
contact: Karen Cochrane-Brown, Staff Attorney Karen.cochrane-brown@ncleg.net
Jeff Hudson, Staff Attorney Jeffrey.hudson@ncleg.net
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
NORTH CAROLINA REGISTER
Publication Schedule for January 2011 – December 2011
FILING DEADLINES NOTICE OF TEXT PERMANENT RULE TEMPORARY
RULES
Volume &
issue
number
Issue date Last day
for filing
Earliest date for
public hearing
End of required
comment
period
Deadline to submit
to RRC
for review at
next meeting
Earliest Eff.
Date of
Permanent Rule
Delayed Eff. Date of
Permanent Rule
31st legislative day of the
session beginning:
270th day from publication
in the Register
25:13 01/03/11 12/08/10 01/18/11 03/04/11 03/21/11 05/01/11 05/2012 09/30/11
25:14 01/18/11 12/22/10 02/02/11 03/21/11 03/21/11 05/01/11 05/2012 10/15/11
25:15 02/01/11 01/10/11 02/16/11 04/04/11 04/20/11 06/01/11 05/2012 10/29/11
25:16 02/15/11 01/25/11 03/02/11 04/18/11 04/20/11 06/01/11 05/2012 11/12/11
25:17 03/01/11 02/08/11 03/16/11 05/02/11 05/20/11 07/01/11 05/2012 11/26/11
25:18 03/15/11 02/22/11 03/30/11 05/16/11 05/20/11 07/01/11 05/2012 12/10/11
25:19 04/01/11 03/11/11 04/16/11 05/31/11 06/20/11 08/01/11 05/2012 12/27/11
25:20 04/15/11 03/25/11 04/30/11 06/14/11 06/20/11 08/01/11 05/2012 01/10/12
25:21 05/02/11 04/08/11 05/17/11 07/01/11 07/20/11 09/01/11 05/2012 01/27/12
25:22 05/16/11 04/25/11 05/31/11 07/15/11 07/20/11 09/01/11 05/2012 02/10/12
25:23 06/01/11 05/10/11 06/16/11 08/01/11 08/22/11 10/01/11 05/2012 02/26/12
25:24 06/15/11 05/24/11 06/30/11 08/15/11 08/22/11 10/01/11 05/2012 03/11/12
26:01 07/01/11 06/10/11 07/16/11 08/30/11 09/20/11 11/01/11 05/2012 03/27/12
26:02 07/15/11 06/23/11 07/30/11 09/13/11 09/20/11 11/01/11 05/2012 04/10/12
26:03 08/01/11 07/11/11 08/16/11 09/30/11 10/20/11 12/01/11 05/2012 04/27/12
26:04 08/15/11 07/25/11 08/30/11 10/14/11 10/20/11 12/01/11 05/2012 05/11/12
26:05 09/01/11 08/11/11 09/16/11 10/31/11 11/21/11 01/01/12 05/2012 05/28/12
26:06 09/15/11 08/24/11 09/30/11 11/14/11 11/21/11 01/01/12 05/2012 06/11/12
26:07 10/03/11 09/12/11 10/18/11 12/02/11 12/20/11 02/01/12 05/2012 06/29/12
26:08 10/17/11 09/26/11 11/01/11 12/16/11 12/20/11 02/01/12 05/2012 07/13/12
26:09 11/01/11 10/11/11 11/16/11 01/03/12 01/20/12 03/01/12 05/2012 07/28/12
26:10 11/15/11 10/24/11 11/30/11 01/17/12 01/20/12 03/01/12 05/2012 08/11/12
26:11 12/01/11 11/07/11 12/16/11 01/30/12 02/20/12 04/01/12 05/2012 08/27/12
26:12 12/15/11 11/22/11 12/30/11 02/13/12 02/20/12 04/01/12 05/2012 09/10/12
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
EXPLANATION OF THE PUBLICATION SCHEDULE
This Publication Schedule is prepared by the Office of Administrative Hearings as a public service and the computation of time periods are not to be deemed binding or controlling.
Time is computed according to 26 NCAC 2C .0302 and the Rules of Civil Procedure, Rule 6.
GENERAL
The North Carolina Register shall be published twice
a month and contains the following information
submitted for publication by a state agency:
(1) temporary rules;
(2) notices of rule-making proceedings;
(3) text of proposed rules;
(4) text of permanent rules approved by the Rules
Review Commission;
(5) notices of receipt of a petition for municipal
incorporation, as required by G.S. 120-165;
(6) Executive Orders of the Governor;
(7) final decision letters from the U.S. Attorney
General concerning changes in laws affecting
voting in a jurisdiction subject of Section 5 of
the Voting Rights Act of 1965, as required by
G.S. 120-30.9H;
(8) orders of the Tax Review Board issued under
G.S. 105-241.2; and
(9) other information the Codifier of Rules
determines to be helpful to the public.
COMPUTING TIME: In computing time in the
schedule, the day of publication of the North Carolina
Register is not included. The last day of the period so
computed is included, unless it is a Saturday, Sunday,
or State holiday, in which event the period runs until
the preceding day which is not a Saturday, Sunday, or
State holiday.
FILING DEADLINES
ISSUE DATE: The Register is published on the first
and fifteen of each month if the first or fifteenth of
the month is not a Saturday, Sunday, or State holiday
for employees mandated by the State Personnel
Commission. If the first or fifteenth of any month is
a Saturday, Sunday, or a holiday for State employees,
the North Carolina Register issue for that day will be
published on the day of that month after the first or
fifteenth that is not a Saturday, Sunday, or holiday for
State employees.
LAST DAY FOR FILING: The last day for filing for any
issue is 15 days before the issue date excluding
Saturdays, Sundays, and holidays for State
employees.
NOTICE OF TEXT
EARLIEST DATE FOR PUBLIC HEARING: The hearing
date shall be at least 15 days after the date a notice of
the hearing is published.
END OF REQUIRED COMMENT PERIOD
An agency shall accept comments on the text of a
proposed rule for at least 60 days after the text is
published or until the date of any public hearings held
on the proposed rule, whichever is longer.
DEADLINE TO SUBMIT TO THE RULES REVIEW
COMMISSION: The Commission shall review a rule
submitted to it on or before the twentieth of a month
by the last day of the next month.
FIRST LEGISLATIVE DAY OF THE NEXT REGULAR
SESSION OF THE GENERAL ASSEMBLY: This date is
the first legislative day of the next regular session of
the General Assembly following approval of the rule
by the Rules Review Commission. See G.S. 150B-
21.3, Effective date of rules.
APPROVED RULES
25:23 NORTH CAROLINA REGISTER JUNE 1, 2011
2478
This Section includes a listing of rules approved by the Rules Review Commission followed by the full text of those rules. The
rules that have been approved by the RRC in a form different from that originally noticed in the Register or when no notice was
required to be published in the Register are identified by an * in the listing of approved rules. Statutory Reference: G.S. 150B-
21.17.
Rules approved by the Rules Review Commission at its meeting on March 17, 2011.
REGISTER CITATION TO THE
NOTICE OF TEXT
CULTURAL RESOURCES, DEPARTMENT OF
Library Collections 07NCAC 02H .0102* 25:09 NCR
Depository Requirements for State Agencies 07 NCAC 02H .0203* 25:09 NCR
Circulation 07NCAC 02H .0305* 25:09 NCR
SOCIAL SERVICES COMMISSION
Goals and Strategies 10ANCAC 70B .0105* 25:13 NCR
PUBLIC HEALTH, COMMISSION FOR
General Requirements for MSWLF Facilities 15A NCAC 13B .1604* 25:04 NCR
Operational Requirements for MSWLF Facilities 15A NCAC 13B .1626* 25:04 NCR
Assessment of Corrective Measures 15ANCAC 13B .1635* 25:04 NCR
WELL CONTRACTORS CERTIFICATION COMMISSION
Application for Certification 15ANCAC 27 .0301* 25:12 NCR
Requirements of Certification 15ANCAC 27 .0702* 25:12 NCR
DENTAL EXAMINERS, BOARD OF
Definitions 21NCAC 16A .0101* 25:12 NCR
Corporate or Limited Liability Company Name 21 NCAC 16F .0103* 24:23 NCR
Dentists 21NCAC 16M .0101 25:12 NCR
MEDICAL BOARD
Fee 21NCAC 32F .0103 25:10 NCR
MIDWIFERY JOINT COMMITTEE
Suspension of Authority to Expend Funds 21 NCAC 33 .0108 25:13 NCR
These rules are subject to the next Legislative Session. (See G.S. 150B-21.3(b1))
ENVIRONMENTAL MANAGEMENT COMMISSION
Definitions 15ANCAC02H .1002 25:10 NCR
OPTICIANS, STATE BOARD OF
Complaints, Preliminary Determinations 21 NCAC 40 .0214* 25:10 NCR
APPROVED RULES
25:23 NORTH CAROLINA REGISTER JUNE 1, 2011
2479
The following Rules were not subject to approval by the Rules Review Commission. (See S.L. 2006-246)
ENVIRONMENTAL MANAGEMENT COMMISSION
Stormwater Discharges 15ANCAC 02H .0126* 25:10 NCR
Definitions 15ANCAC02H .0150 25:10 NCR
Designation and Petition Process 15ANCAC02H .0151* 25:10 NCR
Development in Urbanizing Areas 15ANCAC02H .0152* 25:10 NCR
Program Implementation 15ANCAC02H .0153* 25:10 NCR
Post-Construction Practices 15ANCAC02H .0154* 25:10 NCR
Stormwater Requirements: Coastal Counties 15A NCAC 02H .1005* 25:10 NCR
Stormwater Management for Urbanizing Areas 15A NCAC 02H .1014* 25:10 NCR
Urbanizing Area Definitions 15ANCAC02H .1015 25:10 NCR
Development in Urbanizing Areas 15ANCAC02H .1016* 25:10 NCR
Post-Construction Practices 15ANCAC02H .1017* 25:10 NCR
TITLE 07 – DEPARTMENT OF CULTURAL RESOURCES
07 NCAC 02H .0102 LIBRARY COLLECTIONS
(a) The State Librarian shall determine the scope and focus of
the Library's collections. Library staff and users may
recommend materials for Library collections.
(b) The Library shall collect and maintain resource collections
in all relevant formats as budgets permit, including current and
historical print and digital books, periodicals, newspapers, maps,
state and federal documents, family histories, indexes, and
bibliographies; historical newspapers, census reports, and
primary source materials on microfilm; audiovisual materials in
analog and digital formats and media; and online databases.
History Note: Authority G.S. 125-2; 143B-10;
Eff. May 1, 2011.
07 NCAC 02H .0203 DEPOSITORY REQUIREMENTS
FOR STATE AGENCIES
(a) State agencies in the executive, legislative, and judicial
branches of State government and State-funded boards,
commissions, and institutions shall submit all State publications
and documents defined in the G.S. 125-11.6(2) and 125-11.6(4)
to the North Carolina State Publications Clearinghouse for the
permanent depository collection, distribution to depository
libraries, and public access.
(b) State agencies in the executive, legislative, and judicial
branches of State government and State-funded boards,
commissions, and institutions shall submit 10 copies of
documents and State publications as defined in G.S. 125-11.6(2)
and 125-11.6(4) in tangible formats to the North Carolina State
Publications Clearinghouse and one copy of publications
published or distributed in electronic formats to the North
Carolina State Publications Clearinghouse.
History Note: Authority G.S. 125-2; 125-11.9;
Eff. May 1, 2011.
07 NCAC 02H .0305 CIRCULATION
(a) The Library shall provide materials and playback equipment
according to the Library of Congress lending policies.
(b) The Library shall furnish deposit collections to libraries,
hospitals, rest homes, and other institutions serving eligible
visually and physically handicapped persons.
(c) The following practices by any Library patron shall result in
the suspension of Library services:
(1) repeated failure to return materials within the
borrowing period;
(2) willful and negligent damage to equipment or
materials;
(3) unauthorized use of materials or equipment,
such as loan to an ineligible person or
modification of equipment; or
(4) repeated abusive verbal attacks or behavior
toward Library staff that is offensive or
threatening.
History Note: Authority G.S. 125-2; 143B-10;
Eff. May 1, 2011.
TITLE 10A – DEPARTMENT OF HEALTH AND HUMAN
SERVICES
10A NCAC 70B .0105 GOALS AND STRATEGIES
(a) The goal for each fiscal year commencing with the fiscal
year which begins on October 1, 2011 is that of all the children
in foster care receiving Title IV-E Foster Care Assistance the
number of children who remain in foster care in excess of 24
months will decrease by 1.5 percent.
(b) The following steps shall be taken to achieve the goal stated
in (a) of this Rule. The Department of Health and Human
Services shall:
APPROVED RULES
25:23 NORTH CAROLINA REGISTER JUNE 1, 2011
2480
(1) provide a preplacement preventive services
program designed to help children remain with
their families;
(2) provide a post placement reunification services
program designed to reunite children with their
families in a timely fashion;
(3) maintain a statewide information system;
(4) insure that there is an individual case plan for
each child in foster care;
(5) insure that the status of each child is reviewed
no less frequently than once every six months;
(6) institute procedural safeguards to assure each
child of a dispositional hearing in accordance
with statutory requirements; and
(7) institute procedural safeguards with respect to
parental rights to be informed of changes in
the child's placement and to visit the child.
History Note: Authority G.S. 108A-49; 143B-153; P.L. 96-
272;
Temporary Rule Eff. October 1, 1982, for a Period of 92 Days to
Expire on January 1, 1983;
Eff. January 1, 1983;
Amended Eff. October 1, 2011; June 1, 1990.
TITLE 15A – DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES
15A NCAC 02H .0126 STORMWATER DISCHARGES
(a) Stormwater discharges subject to NPDES permitting are
addressed in this section, which incorporates, supplements and
elaborates on the federal rules on stormwater NPDES
discharges. Other stormwater control requirements are
addressed in Section 02H .1000 entitled "Stormwater
Management", but may also be addressed in sections dedicated
to particular water classifications or circumstances.
(b) Facilities and Regulated Entities (REs), subject to NPDES
permitting, shall be issued NPDES permits for stormwater
discharges to surface waters, in accordance with this Rule, 15A
NCAC 02H .0150 through 02H .0154, and United States
Environmental Protection Agency (EPA) regulations 40 CFR
122.21, 122.26, and 122.28 through 122.37 which are hereby
incorporated by reference including any subsequent
amendments. These federal regulations can be accessed on the
world wide web at http://www.gpoaccess.gov/cfr/index.html.
State regulations can be accessed on the world wide web at
http://www.ncoah.com/rules.
History Note: Authority G.S. 143-214.1; 143-214.7; 143-
215.1; 143-215.3(a)(1);
Eff. November 1, 1986;
Amended Eff. August 3, 1992;
Temporary Amendment Eff. November 1, 2002;
Temporary Amendment returned to Agency by Rules Review
Commission on January 22, 2004;
Amended Eff. Pending Legislative Review.
15A NCAC 02H .0150 DEFINITIONS
Federal definitions for NPDES discharges at 40 C.F.R. 122.2
and 122.26(b), are incorporated herein by reference. State
definitions for NPDES discharges are set out in G.S. 143-212
through G.S. 143-213 and 15A NCAC 02H .0103. As used in
the NPDES stormwater program, the following additional
definitions apply:
(1) The definitions set out in 15A NCAC 02H
.1002 (Definitions).
(2) "Division" means the Division of Water
Quality in the Department.
(3) "Planning jurisdiction" means the territorial
jurisdiction within which a municipality
exercises the powers authorized by Article 19
of Chapter 160A of the General Statutes, or a
county may exercise the powers authorized by
Article 18 of Chapter 153A of the General
Statutes.
(4) "Public entity" means the United States; the
State; a city, village, township, county, school
district, public college or university, or single-purpose
governmental agency; or any other
governing body that is created by federal or
State law.
(5) "Regulated entity" means any public entity
that must obtain a Phase II National Pollutant
Discharge Elimination System (NPDES)
permit for stormwater management for its
municipal separate storm sewer system (MS4).
(6) "Sensitive receiving waters" means any of the
following:
(a) Waters that are classified as high
quality, outstanding resource,
shellfish, trout, or nutrient sensitive
waters in accordance with Paragraphs
(d) and (e) of 15A NCAC 02B .0101
(Procedures for Assignment of Water
Quality Standards – General
Procedures).
(b) Waters that are occupied by or
designated as critical habitat for
aquatic animal species that are listed
as threatened or endangered by the
United States Fish and Wildlife
Service or the National Marine
Fisheries Service under the provisions
of the Endangered Species Act of
1973 (Pub. L. No. 93-205; 87 Stat.
884; 16 U.S.C. § 1531, et seq.), as
amended.
(c) Waters for which the designated use,
as described by the classification
system set out in Paragraphs (c), (d),
and (e) of 15A NCAC 02B .0101
(Procedures for Assignment of Water
Quality Standards – General
Procedures), have been determined to
be impaired in accordance with the
APPROVED RULES
25:23 NORTH CAROLINA REGISTER JUNE 1, 2011
2481
requirements of subsection (d) of 33
U.S.C. §§ 1313.
(7) "Significant contributor of pollutants" means a
municipal separate storm sewer system (MS4)
or a discharge that contributes to the pollutant
loading of a water body or that destabilizes the
physical structure of a water body such that the
contribution to pollutant loading or the
destabilization may reasonably be expected to
adversely affect the quality and uses of the
water body. Uses of a water body shall be
determined pursuant to 15A NCAC 02B .0211
through 15A NCAC 02B .0222
(Classifications and Water Quality Standards
Applicable to Surface Waters and Wetlands of
North Carolina) and 15A NCAC 02B .0300, et
seq. (Assignment of Stream Classifications).
(8) "Total maximum daily load (TMDL)
implementation plan" means a written,
quantitative plan and analysis for attaining and
maintaining water quality standards in all
seasons for a specific water body and
pollutant.
History Note: Authority G.S. 143-213; 143-214.1; 143-
214.7; 143-215.3(a)(1);
Eff. Pending Legislative Review.
15A NCAC 02H .0151 DESIGNATION AND PETITION
PROCESS
(a) Designation of Regulated Entities. A public entity that owns
or operates a municipal separate storm sewer system (MS4) may
be designated as a regulated entity through federal designation,
through a State designation process, or under a total maximum
daily load (TMDL) implementation plan as provided in this
Paragraph.
(1) Federal designation. A public entity that owns
or operates a municipal separate storm sewer
system (MS4) may be designated as a
regulated entity pursuant to 40 Code of
Federal Regulations § 122.32.
(2) State designation process. The Commission
shall designate a public entity that owns or
operates a municipal separate storm sewer
system (MS4) as a regulated entity as provided
in Subparagraphs (2)(A) through (F) below:
(A) Designation schedule. The
Commission shall implement the
designation process in accordance
with the schedule for review and
revision of basinwide water quality
management plans as provided in
G.S. 143-215.8B(c).
(B) Identification of candidate regulated
entities. The Commission shall
identify a public entity as a candidate
for designation as a regulated entity if
the municipal separate storm sewer
system (MS4) either:
(i) Discharges stormwater that
has the potential to adversely
impact water quality. An
adverse impact on water
quality includes any activity
that causes or contributes to
a violation of water quality
standards, including, but not
limited to, any activity that
impairs designated uses or
that has a significant
biological or habitat impact;
or
(ii) Serves a public entity that
has not been designated
pursuant to Item (1) of this
Paragraph and that has either
a population of more than
10,000 or more than 4,000
housing units and either a
population density of 1,000
people per square mile or
more or more than 400
housing units per square
mile.
(C) Notice and comment on candidacy.
The Commission shall notify each
public entity identified as a candidate
for designation as a regulated entity.
After notification of each public
entity, the Commission shall publish
a list of all public entities within a
river basin that have been identified
as candidates for designation. The
Commission shall accept public
comment on the proposed designation
of a public entity as a regulated entity
for a period of not less than 30 days.
(D) Designation of regulated entities.
After review of the public comment,
the Commission shall make a
determination on designation for each
of the candidate public entities. The
Commission shall designate a
candidate public entity that owns or
operates a municipal separate storm
sewer system (MS4) as a regulated
public entity only if the Commission
determines either that:
(i) The public entity has an
actual population growth
rate that exceeds 1.3 times
the State population growth
rate for the previous 10
years;
(ii) The public entity has a
projected population growth
rate that exceeds 1.3 times
the projected State
APPROVED RULES
25:23 NORTH CAROLINA REGISTER JUNE 1, 2011
2482
population growth rate for
the next 10 years;
(iii) The public entity has an
actual population increase
that exceeds 15 percent of its
previous population for the
previous two years;
(iv) The municipal separate
storm sewer system (MS4)
discharges stormwater that
adversely impacts water
quality; or
(v) The municipal separate
storm sewer system (MS4)
discharges stormwater that
results in a significant
contribution of pollutants to
receiving waters, taking into
account the effectiveness of
other applicable water
quality protection programs.
To determine the
effectiveness of other
applicable water quality
protection programs, the
Commission shall consider
the water quality of the
receiving waters and
whether the waters support
the uses set out in
Paragraphs (c), (d), and (e)
of 15A NCAC 02B .0101
(Procedures for Assignment
of Water Quality Standards
– General Procedures) and
the specific classification of
the waters set out in 15A
NCAC 02B .0300, et seq.
(Assignment of Stream
Classifications).
(E) Notice of designation. The
Commission shall provide written
notice to each public entity of its
designation determination. For a
public entity designated as a
regulated entity, the notice shall state
the basis for the designation and the
date on which an application for a
Phase II National Pollutant Discharge
Elimination System (NPDES) permit
for stormwater management must be
submitted to the Commission.
(F) Application schedule. A public entity
that has been designated as a
regulated entity pursuant to this
subdivision must submit its
application for a Phase II National
Pollutant Discharge Elimination
System (NPDES) permit for
stormwater management within 18
months of the date of notification.
(3) Designation under a total maximum daily load
(TMDL) implementation plan. The
Commission shall designate an owner or
operator of a small municipal separate storm
sewer system (MS4) as a regulated entity if the
municipal separate storm sewer system (MS4)
is specifically listed by name as a source of
pollutants for urban stormwater in a total
maximum daily load (TMDL) implementation
plan developed in accordance with subsections
(d) and (e) of 33 U.S.C. § 1313. The
Commission shall provide written notice to
each public entity of its designation
determination. For a public entity designated
as a regulated entity, the notice shall state the
basis for the designation and the date on which
an application for a Phase II National Pollutant
Discharge Elimination System (NPDES)
permit for stormwater management must be
submitted to the Commission. A public entity
that has been designated as a regulated entity
pursuant to this Item must submit its
application for a Phase II National Pollutant
Discharge Elimination System (NPDES)
permit for stormwater management within 18
months of the date of notification.
(b) Petition Process. A petition may be submitted to the
Commission to request that an owner or operator of a municipal
separate storm sewer system (MS4) or a person who discharges
stormwater be required to obtain a Phase II National Pollutant
Discharge Elimination System (NPDES) permit for stormwater
management as follows:
(1) Connected discharge petition. An owner or
operator of a permitted municipal separate
storm sewer system (MS4) may submit a
petition to the Commission to request that a
person who discharges into the permitted
municipal separate storm sewer system (MS4)
be required to obtain a separate Phase II
National Pollutant Discharge Elimination
System (NPDES) permit for stormwater
management. The Commission shall grant the
petition and require the person to obtain a
separate Phase II National Pollutant Discharge
Elimination System (NPDES) permit for
stormwater management if the petitioner
shows that the person's discharge flows or will
flow into the permitted municipal separate
storm sewer system (MS4).
(2) Adverse impact petition. Any person may
submit a petition to the Commission to request
that an owner or operator of a municipal
separate storm sewer system (MS4) or a
person who discharges stormwater be required
to obtain a Phase II National Pollutant
Discharge Elimination System (NPDES)
permit for stormwater management as follows:
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(A) Petition review. The Commission
shall grant the petition and require the
owner or operator of the municipal
separate storm sewer system (MS4)
or the person who discharges
stormwater to obtain a Phase II
National Pollutant Discharge
Elimination System (NPDES) permit
for stormwater management if the
petitioner shows any of the following:
(i) The municipal separate
storm sewer system (MS4)
or the discharge discharges
or has the potential to
discharge stormwater that
may cause or contribute to a
water quality standard
violation;
(ii) The municipal separate
storm sewer system (MS4)
or the discharge provides a
significant contribution of
pollutants to receiving
waters;
(iii) The municipal separate
storm sewer system (MS4)
or the discharge is
specifically listed by name
as a source of pollutants for
urban stormwater in a total
maximum daily load
(TMDL) implementation
plan developed in
accordance with subsections
(d) and (e) of 33 U.S.C. §
1313.
(B) Types of evidence for required
showing. Petitioners may make the
required showing by providing to the
Commission the following
information:
(i) Monitoring data that
includes, at a minimum,
representative sampling of
the municipal separate storm
sewer system (MS4) or
discharge and information
describing how the sampling
is representative. The
petitioner must notify the
owner or operator of the
municipal separate storm
sewer system (MS4) or the
person who discharges
stormwater of its intent to
conduct monitoring
activities prior to conducting
those activities;
(ii) Scientific or technical
literature that supports the
sampling methods;
(iii) Study and technical
information on land uses in
the drainage area and the
characteristics of stormwater
runoff from these land uses;
(iv) A map that delineates the
drainage area of the
petitioned entity; the
location of sampling
stations; the location of the
stormwater outfalls in the
adjacent area of the
sampling locations; general
features, including, but not
limited to, surface waters,
major roads, and political
boundaries; and areas of
concern regarding water
quality;
(v) For stormwater discharges to
impaired waters,
documentation that the
receiving waters are
impaired or degraded and
monitoring data that
demonstrates that the
municipal separate storm
sewer system (MS4) or
discharge contributes
pollutants for which the
waters are impaired or
degraded;
(vi) For stormwater discharges to
nonimpaired waters,
monitoring data that
demonstrates that the owner
or operator of the municipal
separate storm sewer system
(MS4) or the person who
discharges stormwater is a
significant contributor of
pollutants to the receiving
waters.
(C) Water quality protection program
offset. If the petitioner makes the
required showing, the Commission
shall review the effectiveness of any
existing water quality protection
programs that may offset the need to
obtain a Phase II National Pollutant
Discharge Elimination System
(NPDES) permit for stormwater
management. To determine the
effectiveness of other applicable
water quality protection programs,
the Commission shall consider the
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water quality of the receiving waters
and whether the waters support the
uses set out in Paragraphs (c), (d),
and (e) of 15A NCAC 02B .0101
(Procedures for Assignment of Water
Quality Standards – General
Procedures) and the specific
classification of the waters set out in
15A NCAC 2B .0300, et seq.
(Assignment of Stream
Classifications). The Commission
may deny the petition if it finds that
existing water quality protection
programs are adequate to address
stormwater impacts on sensitive
receiving waters and to ensure
compliance with a TMDL
implementation plan.
(3) Petition administration. The Commission shall
process petitions in the following manner:
(A) The Commission shall only accept
petitions submitted on Department
forms.
(B) A separate petition must be filed for
each municipal separate storm sewer
system (MS4) or discharge.
(C) The Commission shall evaluate only
complete petitions. The Commission
shall make a determination on the
completeness of a petition within 90
days of receipt of the petition, or it
shall be deemed complete. If the
Commission requests additional
information, the petitioner may
submit additional information; and
the Commission will determine,
within 90 days of receipt of the
additional information, whether the
information completes the petition.
(D) The petitioner shall provide a copy of
the petition and a copy of any
subsequent additional information
submitted to the Commission to the
chief administrative officer of the
municipal separate storm sewer
system (MS4) or the person in control
of the discharge within 48 hours of
each submittal.
(E) The Commission shall post all
petitions on the Division Web site
and maintain copies available for
inspection at the Division's office.
The Commission shall accept and
consider public comment for at least
30 days from the date of posting.
(F) The Commission may hold a public
hearing on a petition and shall hold a
public hearing on a petition if it
receives a written request for a public
hearing within the public comment
period, and the Commission
determines that there is a significant
public interest in holding a public
hearing. The Commission's
determination to hold a public
hearing shall be made no less than 15
days after the close of the public
comment period. The Commission
shall schedule the hearing to be held
within 45 days of the close of the
initial public comment period and
shall accept and consider additional
public comment through the date of
the hearing.
(G) An additional petition for the same
municipal separate storm sewer
system (MS4) or discharge received
during the public comment period
shall be considered as comment on
the original petition. An additional
petition for the same municipal
separate storm sewer system (MS4)
or discharge received after the public
comment period ends and before the
final determination is made shall be
considered incomplete and held
pending a final determination on the
original petition.
(i) If the Commission
determines that the owner or
operator of the municipal
separate storm sewer system
(MS4) or the person who
discharges stormwater is
required to obtain a Phase II
National Pollutant Discharge
Elimination System
(NPDES) permit for
stormwater management,
any petitions for that
municipal separate storm
sewer system (MS4) or
discharge that were held
shall be considered in the
development of the Phase II
National Pollutant Discharge
Elimination System
(NPDES) permit for
stormwater management.
(ii) If the Commission
determines that the owner or
operator of the municipal
separate storm sewer system
(MS4) or the person who
discharges stormwater is not
required to obtain a Phase II
National Pollutant Discharge
Elimination System
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2485
(NPDES) permit for
stormwater management, an
additional petition for the
municipal separate storm
sewer system (MS4) or
discharge must present new
information or demonstrate
that conditions have changed
in order to be considered. If
new information is not
provided, the petition shall
be returned as substantially
incomplete.
(H) The Commission shall evaluate a
petition within 180 days of the date
on which it is determined to be
complete. If the Commission
determines that the owner or operator
of the municipal separate storm sewer
system (MS4) or the person who
discharges stormwater is required to
obtain a Phase II National Pollutant
Discharge Elimination System
(NPDES) permit for stormwater
management, the Commission shall
notify the owner or operator of the
municipal separate storm sewer
system (MS4) or the person who
discharges stormwater within 30 days
of the requirement to obtain the
permit. The owner or operator of the
municipal separate storm sewer
system (MS4) or the person who
discharges stormwater must submit
its application for a Phase II National
Pollutant Discharge Elimination
System (NPDES) permit for
stormwater management within 18
months of the date of notification.
(c) Exemption. A municipality with a population of less than
1,000, including a municipality designated as an urbanized area
under the most recent federal decennial census, is not required to
obtain a Phase II National Pollutant Discharge Elimination
System (NPDES) permit for stormwater management unless the
municipality is shown to be contributing to an impairment of
State waters, as determined under the requirements of 33 U.S.C.
§ 1313(d).
(d) Waiver. The Department may waive the Phase II National
Pollutant Discharge Elimination System (NPDES) permit
requirement pursuant to 40 Code of Federal Regulations §§
122.32(d) or (e).
History Note: Authority G.S. 143-214.1; 143-214.7; 143-
215.1; 143-215.3(a)(1);
Eff. Pending Legislative Review.
15A NCAC 02H .0152 DEVELOPMENT IN
URBANIZING AREAS
(a) Development in Unincorporated Areas of Counties.
(1) Development that cumulatively disturbs one
acre or more of land located in the
unincorporated area of a county shall comply
with the standards set forth in Rule 02H .0154
of this Section beginning 1 July 2007 if the
development is located in:
(A) An area that is designated as an
urbanized area under the most recent
federal decennial census.
(B) The unincorporated area of a county
outside of a municipality designated
as an urbanized area under the most
recent federal decennial census that
extends:
(i) One mile beyond the
corporate limits of a
municipality with a
population of less than
10,000 individuals;
(ii) Two miles beyond the
corporate limits of a
municipality with a
population of 10,000 or
more individuals but less
than 25,000 individuals; and
(iii) Three miles beyond the
corporate limits of a
municipality with a
population of 25,000 or
more individuals.
(C) An area delineated pursuant to Item
(2) of this Paragraph.
(D) A county that contains an area that is
designated as an urbanized area under
the most recent federal decennial
census in which the unduplicated sum
of: (i) the area that is designated as
an urbanized area under the most
recent federal decennial census; (ii)
the area described in Subparagraph
(1)(B) of this Paragraph; (iii) the area
delineated pursuant to Item (2) of this
Paragraph; (iv) the jurisdiction of a
regulated entity designated pursuant
to Rule 02H .0151(a) of this Section;
(v) the area that is regulated by a
Phase II National Pollutant Discharge
Elimination System (NPDES) permit
for stormwater management required
pursuant to Rule 02H .0151(b) of this
Section; and (vi) areas in the county
that are subject to any of the
stormwater management programs
administered by the Division equal or
exceed 75 percent of the total
geographic area of the county. For
purposes of this Paragraph, the
stormwater programs administered by
the Division are:
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25:23 NORTH CAROLINA REGISTER JUNE 1, 2011
2486
(i) Water Supply Watershed I
(WS-I) – 15A NCAC 02B
.0212;
(ii) Water Supply Watershed II
(WS-II) – 15A NCAC 02B
.0214;
(iii) Water Supply Watershed III
(WS-III) – 15A NCAC 02B
.0215;
(iv) Water Supply Watershed IV
(WS-IV) – 15A NCAC 02B
.0216;
(v) High Quality Waters (HQW)
– 15A NCAC 02H .1006;
(vi) Outstanding Resource
Waters (ORW) – 15A
NCAC 02H .1007;
(vii) The Coastal Stormwater
Program – 15A NCAC 02H
.1005;
(viii) The Neuse River Basin
Nutrient Sensitive Waters
(NSW) Management
Strategy – 15A NCAC 02B
.0235;
(ix) The Tar-Pamlico River
Basin Nutrient Sensitive
(NSW) Management
Strategy – 15A NCAC 02B
.0258;
(x) The Randleman Lake Water
Supply Watershed Nutrient
Management Strategy – 15A
NCAC 02B .0251; and
(xi) Other Environmental
Management Commission
Nutrient Sensitive Waters
(NSW) Classifications –
15A NCAC 02B .0223.
(E) A county that contains an area that is
designated as an urbanized area under
the 1990 or 2000 federal decennial
census and that has an actual
population growth rate that exceeded
the State population growth rate for
the period 1995 through 2004.
(2) Delineation Process. The Commission shall
delineate regulated coverage areas as provided
in Subparagraphs (2)(A) through (F) below:
(A) Schedule. The Commission shall
implement the delineation process in
accordance with the schedule for
review and revision of basinwide
water quality management plans as
provided in G.S. 143-215.8B(c).
(B) Potential candidate coverage areas. A
potential candidate coverage area is
the unincorporated area of a county
that is outside a municipality
designated as a regulated entity
pursuant to Rule 02H .0151(a) of this
Section that:
(i) Extends one mile beyond the
corporate limits of a
municipality with a
population of less than
10,000 individuals;
(ii) Extends two miles beyond
the corporate limits of a
municipality with a
population of 10,000 or
more individuals but less
than 25,000 individuals; and
(iii) Extends three miles beyond
the corporate limits of a
municipality with a
population of 25,000 or
more individuals.
(C) Identification of candidate coverage
areas. The Commission shall identify
an area within a potential candidate
coverage area described in
Subparagraph (2)(B)(ii) of this
Paragraph as a candidate coverage
area if the discharge of stormwater
within or from the unincorporated
area has the potential to adversely
impact water quality. An adverse
impact on water quality includes any
activity that violates water quality
standards, including, but not limited
to, any activity that impairs
designated uses or that has a
significant biological or habitat
impact.
(D) Notice and comment on candidacy.
The Commission shall notify each
public entity that is located in whole
or in part in a candidate coverage
area. After notification of each public
entity, the Commission shall publish
a map of the unincorporated areas
within the river basin that have been
identified as candidates for
delineation as regulated coverage
areas. The Commission shall accept
public comment on the proposed
delineation of a candidate coverage
area as a regulated coverage area for a
period of not less than 30 days.
(E) Delineation of regulated coverage
areas. After review of public
comment, the Commission shall
delineate regulated coverage areas.
The Commission shall delineate a
candidate coverage area as a
regulated coverage area only if the
Commission determines that the
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discharge of stormwater within or
from the candidate coverage area
either:
(i) Adversely impacts water
quality; or
(ii) Results in a significant
contribution of pollutants to
sensitive receiving waters,
taking into account the
effectiveness of other
applicable water quality
protection programs. To
determine the effectiveness
of other applicable water
quality protection programs,
the Commission shall
consider the water quality of
the receiving waters and
whether the waters support
the uses set out in
Paragraphs (c), (d), and (e)
of 15A NCAC 2B .0101
(Procedures for Assignment
of Water Quality Standards
– General Procedures) and
the specific classification of
the waters set out in 15A
NCAC 02B .0300, et seq.
(Assignment of Stream
Classifications).
(F) Notice of delineation. The
Commission shall provide written
notice to each public entity that is
located in whole or in part in a
candidate coverage area of its
delineation determination. The notice
shall state the basis for the
determination.
(3) Except as provided in this Paragraph and 15A
NCAC 02H .1016(d), the Commission shall
administer and enforce the standards for
development in the regulated coverage areas.
To the extent authorized by law, where the
development is located in a municipal
planning jurisdiction, the municipality shall
administer and enforce the standards. A public
entity may request that the Commission
delegate administration and enforcement of the
stormwater management program to the public
entity as provided in 15A NCAC 02H
.1016(d).
(b) Development in Non-Phase II Incorporated Areas in Certain
Counties. Development that cumulatively disturbs one acre or
more of land located in the incorporated areas of a county
described in Subparagraphs (1)(D) and (E) of Paragraph (a), that
are not designated as an urbanized area under the most recent
federal decennial census, shall comply with the standards set
forth in Rule 02H .0151(a) of this Section of this act beginning 1
July 2007. The Commission shall administer and enforce the
standards for development unless the public entity requests that
the Commission delegate administration and enforcement of the
stormwater management program to the public entity as
provided in 15A NCAC 02H .1016(d).
History Note: Authority G.S. 143-214.1; 143-214.7; 143-
215.1; 143-215.3(a)(1);
Eff. Pending Legislative Review.
15A NCAC 02H .0153 PROGRAM IMPLEMENTATION
(a) Permit Standards. To obtain a Phase II National Pollutant
Discharge Elimination System (NPDES) permit for stormwater
management, an applicant shall, to the extent authorized by law,
develop, implement, and enforce a stormwater management plan
approved by the Commission that satisfies the six minimum
control measures required by 40 Code of Federal Regulations §
122.34(b). The evaluation of the post-construction stormwater
management measures required by 40 Code of Federal
Regulations § 122.34(b)(5) shall be conducted as provided in
Rule .0154(a) of this Section. Regulated entities may propose
using any existing State or local program that relates to the
minimum measures to meet, either in whole or in part, the
requirements of the minimum measures.
(b) Implementation Schedule. The requirements of this act shall
be implemented as follows:
(1) A regulated entity must apply within 18
months of notification by the Department that
the regulated entity is subject to regulation
pursuant to Rules .0151(a) and (b), and .0152
of this Section.
(2) Public education and outreach minimum
measures shall be implemented no later than
12 months from date of permit issuance.
(3) A regulated entity must implement its post-construction
program no later than 24 months
from the date the permit is issued.
(4) The Department shall include permit
conditions that establish schedules for
implementation of each minimum measure of
the regulated entity's stormwater management
program based on the submitted application so
that the regulated entity fully implements its
permitted program within five years from
permit issuance.
(c) Federal and State Projects. The Commission shall have
jurisdiction, to the exclusion of local governments, to issue a
National Pollutant Discharge Elimination System (NPDES)
permit for stormwater management to a federal or State agency
that applies to all or part of the activities of the agency or that
applies to the particular project. If a federal or State agency does
not hold a Phase I or Phase II National Pollutant Discharge
Elimination System (NPDES) permit for stormwater
management that applies to the particular project, then the
project is subject to the stormwater management requirements of
this Rule as implemented by the Commission or by a local
government. The provisions of G.S. 153A-347 and G.S. 160A-
392 apply to the implementation of this Rule.
(d) General Permit. The Commission shall develop and issue a
Phase II National Pollutant Discharge Elimination System
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(NPDES) general permit for stormwater management. The
general permit requirements for post-construction stormwater
management measures required by 40 Code of Federal
Regulations § 122.34(b)(5) shall require a permittee to meet the
standards set out in Rule .0154(a) of this Section but shall not
impose any requirement on the permittee that exceeds the
standards set out in Rule .0154(a) of this Section. After the
Commission has issued a Phase II National Pollutant Discharge
Elimination System (NPDES) general permit for stormwater
management, a public entity that has applied for a permit may
submit a notice of intent to be covered under the general permit
to the Commission. The Commission shall treat an application
for a permit as an application for an individual permit unless the
applicant submits a notice of intent to be covered under a general
permit under this Paragraph.
(e) The exclusions from the requirement to obtain a Phase II
National Pollutant Discharge Elimination System (NPDES)
permit set out in 40 Code of Federal Regulations § 122.3,
including the exclusions for certain nonpoint source agricultural
and silvicultural activities, apply to the provisions of this Rule.
History Note: Authority G.S. 143-214.1; 143-214.7; 143-
215.1; 143-215.3(a)(1);
Eff. Pending Legislative Review.
15A NCAC 02H .0154 POST-CONSTRUCTION
PRACTICIES
(a) Requirements for Post-Construction Practices.
(1) Permittees, delegated programs, and regulated
entities must require stormwater controls for a
project that disturbs one acre or more of land,
including a project that disturbs less than one
acre of land that is part of a larger common
plan of development or sale. Whether an
activity or project that disturbs less than one
acre of land is part of a larger common plan of
development shall be determined in a manner
consistent with the memorandum referenced as
"Guidance Interpreting Phase 2 Stormwater
Requirements" from the Director of the DWQ
of the DENR to Interested Parties dated 24
July 2006. The stormwater controls shall be
appropriate to the project's level of density as
follows:
(A) Low Density Option. A project that
is located within any of the coastal
counties is a low density project if it
meets the low density requirements of
15A NCAC 02H .1005. A project
that is not located within any of the
coastal counties is a low density
project if it contains no more than 24
percent built-upon area or no more
than two dwelling units per acre.
Low density projects must use
vegetated conveyances to the
maximum extent practicable to
transport stormwater runoff from the
project. On-site stormwater treatment
devices such as infiltration areas,
bioretention areas, and level spreaders
may also be used as added controls
for stormwater runoff. A project with
an overall density at or below the low
density thresholds, but containing
areas with a density greater than the
overall project density, may be
considered low density as long as the
project meets or exceeds the
requirements of this Subparagraph
(1)(A) and locates the higher density
development in upland areas and
away from surface waters and
drainageways to the maximum extent
practicable.
(B) High Density Option. A project that
is located within any of the coastal
counties is a high density project if it
meets the high density requirements
of 15A NCAC 2H .1005. A project
that is not located within any of the
coastal counties is a high density
project if it contains more than 24
percent built-upon area or more than
two dwelling units per acre. High
density projects must use structural
stormwater management systems that
will control and treat runoff from the
first one inch of rain. The structural
stormwater management system must
also meet the following design
standards:
(i) Draw down the treatment
volume no faster than 48
hours, but no slower than
120 hours.
(ii) Discharge the storage
volume at a rate equal to or
less than the predevelopment
discharge rate for the one-year,
24-hour storm.
(iii) Remove an 85 percent
average annual amount of
Total Suspended Solids.
(iv) Meet the General
Engineering Design Criteria
set out in 15A NCAC 02H
.1008(c).
(v) Wet detention ponds
designed in accordance with
the requirements of Item (6)
of this Paragraph may be
used for projects draining to
Class SA waters.
(2) Permittees, delegated programs, and regulated
entities must require built-upon areas to be
located at least 30 feet landward of all
perennial and intermittent surface waters. For
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purposes of Paragraph (a), a surface water
shall be present if the feature is shown on
either the most recent version of the soil
survey map prepared by the Natural Resources
Conservation Service of the United States
Department of Agriculture or the most recent
version of the 1:24,000 scale (7.5 minute)
quadrangle topographic maps prepared by the
United States Geologic Survey (USGS).
Relief from this requirement may be allowed
when surface waters are not present in
accordance with the provisions of 15A NCAC
02B .0233(3)(a). In addition, an exception to
this requirement may be pursued in accordance
with Paragraph (c) of this Rule.
(3) Permittees, delegated programs, and regulated
entities must implement or require a fecal
coliform reduction program that controls, to
the maximum extent practicable, the sources
of fecal coliform. At a minimum, the program
shall include the development and
implementation of an oversight program to
ensure proper operation and maintenance of
on-site wastewater treatment systems for
domestic wastewater. For municipalities, this
program may be coordinated with local county
health departments.
(4) Permittees, delegated programs, and regulated
entities must impose or require recorded
restrictions and protective covenants to be
recorded on the property in the Office of the
Register of Deeds in the county where the
property is located prior to the issuance of a
certificate of occupancy in order to ensure that
development activities will maintain the
project consistent with approved plans.
(5) Permittees, delegated programs, and regulated
entities must implement or require an
operation and maintenance plan that ensures
the adequate long-term operation of the
structural best management practices (BMP)
required by the program. The operation and
maintenance plan must require the owner of
each structural BMP to submit a maintenance
inspection report on each structural BMP
annually to the local program.
(6) For areas draining to Class SA waters,
permittees, delegated programs, and regulated
entities must:
(A) Use BMPs that result in the highest
degree of fecal coliform die-off and
control to the maximum extent
practicable sources of fecal coliform
while still incorporating the
stormwater controls required by the
project's density level.
(B) Implement a program to control the
sources of fecal coliform to the
maximum extent practicable,
including a pet waste management
component, which may be achieved
by revising an existing litter
ordinance, and an on-site domestic
wastewater treatment systems
component to ensure proper operation
and maintenance of such systems,
which may be coordinated with local
county health departments.
(C) Meet the requirements of 15A NCAC
2H .1005(a)(2).
(7) For areas draining to Trout Waters, permittees,
delegated programs, and regulated entities
must:
(A) Use BMPs that avoid a sustained
increase in the receiving water
temperature, while still incorporating
the stormwater controls required for
the project's density level.
(B) Allow on-site stormwater treatment
devices such as infiltration areas,
bioretention areas, and level spreaders
as added controls.
(8) For areas draining to Nutrient Sensitive
Waters, permittees, delegated programs, and
regulated entities must:
(A) Use BMPs that reduce nutrient
loading, while still incorporating the
stormwater controls required for the
project's density level. In areas where
the Department has approved a
Nutrient Sensitive Water Urban
Stormwater Management Program,
the provisions of that program fulfill
the nutrient loading reduction
requirement. Nutrient Sensitive
Water Urban Stormwater
Management Program requirements
are found in 15A NCAC 02B .0200.
(B) Implement a nutrient application
management program for both
inorganic fertilizer and organic
nutrients to reduce nutrients entering
waters of the State.
(9) For post-construction requirements, a program
will be deemed compliant for the areas where
it is implementing any of the following
programs:
(A) Water Supply Watershed I (WS-I) –
15A NCAC 02B .0212;
(B) Water Supply Watershed II (WS-II) –
15A NCAC 02B .0214;
(C) Water Supply Watershed III (WS-III)
– 15A NCAC 02B .0215;
(D) Water Supply Watershed IV (WS-IV)
– 15A NCAC 02B .0216;
(E) Freshwater High Quality Waters
(HQW) – 15A NCAC 02H .1006;
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(F) Freshwater Outstanding Resource
Waters (ORW) – 15A NCAC 02H
.1007;
(G) The Neuse River Basin Nutrient
Sensitive Waters (NSW)
Management Strategy – 15A NCAC
02B .0235;
(H) The Tar-Pamlico River Basin
Nutrient Sensitive (NSW)
Management Strategy – 15A NCAC
02B .0258; or
(I) The Randleman Lake Water Supply
Watershed Nutrient Management
Strategy – 15A NCAC 02B .0251.
(10) In order to fulfill the post-construction
minimum measure program requirement, a
permittee, delegated program, or regulated
entity may use the Department's model
ordinance, design its own post-construction
practices based on the Department's guidance
on scientific and engineering standards for
BMPs, incorporate the post-construction
model practices described in this act, or
develop its own comprehensive watershed
plan that is determined by the Department to
meet the post-construction stormwater
management measure required by 40 Code of
Federal Regulations § 122.34(b)(5).
(11) Nothing in this Paragraph shall limit, expand,
or alter the requirement that a discharge fully
comply with all applicable State or federal
water quality standards.
(b) Exclusions from Post-Construction Practices. The post-construction
practices required by Paragraph (a) of this Rule
shall not apply to any of the following:
(1) Development in an area where the
requirements of Paragraph (a) of this act are
applicable that is conducted pursuant to one of
the following authorizations, provided that the
authorization was obtained prior to the
effective date of the post-construction
stormwater control requirements in the area
and the authorization is valid, unexpired,
unrevoked, and not otherwise terminated:
(A) A building permit pursuant to G.S.
153A-357 or G.S. 160A-417;
(B) A site-specific development plan as
defined by G.S. 153A-344.1(b)(5)
and G.S. 160A-385.1(b)(5);
(C) A phased development plan approved
pursuant to G.S. 153A-344.1 for a
project located in the unincorporated
area of a county that is subject to the
requirements of Paragraph (a), if the
Commission is responsible for
implementation of the requirements
of Paragraph (a) that shows:
(i) For the initial or first phase
of development, the type and
intensity of use for a specific
parcel or parcels, including
at a minimum, the
boundaries of the project and
a subdivision plan that has
been approved pursuant to
G.S. 153A-330 through G.S.
153A-335.
(ii) For any subsequent phase of
development, sufficient
detail so that implementation
of the requirements of
Paragraph (a) to that phase
of development would
require a material change in
that phase of the plan.
(D) A vested right to the development
under G.S. 153A-344(b), 153A-
344.1, 160A-385(b), or 160A-385.1
issued by a local government that
implements Paragraph (a); or
(E) A vested right to the development
pursuant to common law.
(2) Redevelopment as defined in Rule .0150 of
this Section.
(c) Exceptions. The Department or an appropriate local
authority, pursuant to Article 18 of G.S. 153A or Article 19 of
G.S. 160A, may grant exceptions from the 30-foot landward
location of built-upon area requirement as well as the deed
restrictions and protective covenants requirement as follows:
(1) An exception may be granted if the application
meets all of the following criteria:
(A) Unnecessary hardships would result
from strict application of the act;
(B) The hardships result from conditions
that are peculiar to the property, such
as the location, size, or topography of
the property;
(C) The hardships did not result from
actions taken by the petitioner; and
(D) The requested exception is consistent
with the spirit, purpose, and intent of
this act; will protect water quality;
will secure public safety and welfare;
and will preserve substantial justice.
Merely proving that the exception
would permit a greater profit from the
property shall not be considered
adequate justification for an
exception.
(2) Notwithstanding Item (1) of this Paragraph,
exceptions shall be granted in any of the
following instances:
(A) When there is a lack of practical
alternatives for a road crossing,
railroad crossing, bridge, airport
facility, or utility crossing as long as
it is located, designed, constructed,
and maintained to minimize
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disturbance, provide maximum
nutrient removal, protect against
erosion and sedimentation, have the
least adverse effects on aquatic life
and habitat, and protect water quality
to the maximum extent practicable
through the use of BMPs.
(B) When there is a lack of practical
alternatives for a stormwater
management facility; a stormwater
management pond; or a utility,
including, but not limited to, water,
sewer, or gas construction and
maintenance corridor, as long as it is
located 15 feet landward of all
perennial and intermittent surface
waters and as long as it is located,
designed, constructed, and
maintained to minimize disturbance,
provide maximum nutrient removal,
protect against erosion and
sedimentation, have the least adverse
effects on aquatic life and habitat, and
protect water quality to the maximum
extent practicable through the use of
BMPs.
(C) A lack of practical alternatives may
be shown by demonstrating that,
considering the potential for a
reduction in size, configuration, or
density of the proposed activity and
all alternative designs, the basic
project purpose cannot be practically
accomplished in a manner which
would avoid or result in less adverse
impact to surface waters.
(3) Reasonable and appropriate conditions and
safeguards may be imposed upon any
exception granted.
(4) Local authorities must document the exception
procedure and submit an annual report to the
Department on all exception proceedings.
(5) Appeals of the Department's exception
decisions must be filed with the Office of
Administrative Hearings, under G.S. 150B-23.
Appeals of a local authority's exception
decisions must be made to the appropriate
Board of Adjustment or other appropriate local
governing body, under G.S. 160A-388 or G.S.
153A-345.
History Note: Authority G.S. 143-214.1; 143-214.7; 143-
215.1; 143-215.3(a)(1);
Eff. Pending Legislative Review.
15A NCAC 02H .1002 DEFINITIONS
The definition of any word or phrase in this Section shall be the
same as given in Article 21, Chapter 143 of the General Statutes
of North Carolina, as amended. Other words and phrases used in
this Section are defined as follows:
(1) "Built-upon Area" means that portion of a
development project that is covered by
impervious or partially impervious surface
including, but not limited to, buildings;
pavement and gravel areas such as roads,
parking lots, and paths; and recreation
facilities such as tennis courts "Built upon
area" does not include a wooden slatted deck,
the water area of a swimming pool, or
pervious or partially pervious paving material
to the extent that the paving material absorbs
water or allows water to infiltrate through the
paving material.
(2) "CAMA Major Development Permits" mean
those permits or revised permits required by
the Coastal Resources Commission according
to 15A NCAC 7J Sections .0100 and .0200.
(3) "Certificate of Stormwater Compliance"
means the approval for activities that meet the
requirements for coverage under a stormwater
general permit for development activities that
are regulated by this Section.
(4) "Coastal Counties" include Beaufort, Bertie,
Brunswick, Camden, Carteret, Chowan,
Craven, Currituck, Dare, Gates, Hertford,
Hyde, New Hanover, Onslow, Pamlico,
Pasquotank, Pender, Perquimans, Tyrrell, and
Washington.
(5) "Curb Outlet System" means curb and gutter
installed in a development which meets low
density criteria [Rule .1003(d)(1) of this
Section] with breaks in the curb or other
outlets used to convey stormwater runoff to
grassed swales or vegetated or natural areas
and designed in accordance with Rule .1008(g)
of this Section.
(6) "Development" means any land disturbing
activity that increases the amount of built-upon
area or that otherwise decreases the infiltration
of precipitation into the soil.
(7) "Drainage Area or Watershed" means the
entire area contributing surface runoff to a
single point.
(8) "Forebay" means a device located at the head
of a wet detention pond to capture incoming
sediment before it reaches the main portion of
the pond. The forebay is typically an
excavated settling basin or a section separated
by a low weir.
(9) "General Permit" means a "permit" issued
under G.S. 143-215.1(b)(3) and (4) authorizing
a category of similar activities or discharges.
(10) "Infiltration Systems" mean stormwater
control systems designed to allow runoff to
pass or move (infiltrate/exfiltrate) into the soil.
(11) "Notice of Intent" means a written notification
to the Division that an activity or discharge is
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intended to be covered by a general permit and
takes the place of "application" used with
individual permits.
(12) "Off-site Stormwater Systems" mean
stormwater management systems that are
located outside the boundaries of the specific
project in question, but designed to control
stormwater drainage from that project and
other potential development sites. These
systems shall designate responsible parties for
operation and maintenance and may be owned
and operated as a duly licensed utility or by a
local government.
(13) "On-site Stormwater Systems" mean the
systems necessary to control stormwater
within an individual development project and
located within the project boundaries.
(14) "Redevelopment" means any land disturbing
activity that does not result in a net increase in
built-upon area and that provides greater or
equal stormwater control than the previous
development (stormwater controls shall not be
allowed where otherwise prohibited).
(15) "Seasonal High Water Table" means the
highest level that groundwater, at atmospheric
pressure, reaches in the soil in most years.
The seasonal high water table is usually
detected by the mottling of the soil that results
from mineral leaching.
(16) "Sedimentation/Erosion Control Plan" means
any plan, amended plan or revision to an
approved plan submitted to the Division of
Land Resources or delegated authority in
accordance with G.S. 113A-57.
(17) "Stormwater" is defined in G.S. 143, Article
21.
(18) "Stormwater Collection System" means any
conduit, pipe, channel, curb or gutter for the
primary purpose of transporting (not treating)
runoff. A stormwater collection system does
not include vegetated swales, swales stabilized
with armoring or alternative methods where
natural topography or other physical
constraints prevents the use of vegetated
swales (subject to case-by-case review), curb
outlet systems, or pipes used to carry drainage
underneath built-upon surfaces that are
associated with development controlled by the
provisions of Rule .1003(d)(1) in this Section.
(19) "10 Year Storm" means the surface runoff
resulting from a rainfall of an intensity
expected to be equaled or exceeded, on the
average, once in 10 years, and of a duration
which will produce the maximum peak rate of
runoff, for the watershed of interest under
average antecedent wetness conditions.
(20) "Water Dependent Structures" means a
structure for which the use requires access or
proximity to or siting within surface waters to
fulfill its basic purpose, such as boat ramps,
boat houses, docks, and bulkheads. Ancillary
facilities such as restaurants, outlets for boat
supplies, parking lots and boat storage areas
are not water dependent uses.
(21) "Wet Detention Pond" means a structure that
provides for the storage and control of runoff
and includes a designed and maintained
permanent pool volume.
(22) "Vegetative Buffer" means an area of natural
or established vegetation directly adjacent to
surface waters through which stormwater
runoff flows in a diffuse manner to protect
surface waters from degradation due to
development activities. The width of the
buffer is measured horizontally from the
normal pool elevation of impounded
structures, from the bank of each side of
streams or rivers, and from the mean high
water line of tidal waters, perpendicular to the
shoreline.
(23) "Vegetative Filter" means an area of natural or
planted vegetation through which stormwater
runoff flows in a diffuse manner so that runoff
does not become channelized and which
provides for control of stormwater runoff
through infiltration of runoff and filtering of
pollutants. The defined length of the filter
shall be provided for in the direction of
stormwater flow.
(24) "One-year, 24-hour storm" means a rainfall of
an intensity expected to be equaled or
exceeded, on average, once in 12 months and
with a duration of 24 hours.
(25) "BMP" means Best Management Practice.
(26) "Permeable pavement" means paving material
that absorbs water or allows water to infiltrate
through the paving material. Permeable
pavement materials include porous concrete,
permeable interlocking concrete pavers,
concrete grid pavers, porous asphalt, and any
other material with similar characteristics.
Compacted gravel shall not be considered
permeable pavement.
(27) "Residential development activities" has the
same meaning as in 15A NCAC 02B
.0202(54).
(28) "Vegetative conveyance" means a permanent,
designed waterway lined with vegetation that
is used to convey stormwater runoff at a non-erosive
velocity within or away from a
developed area.
History Note: Authority G.S. 143-213; 143-214.1; 143-
214.7; 143-215.3(a)(1);
Eff. January 1, 1988;
Amended Eff. December 1, 1995; September 1, 1995;
Amended Eff. Pending Legislative Review.
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15A NCAC 02H .1005 STORMWATER
REQUIREMENTS: COASTAL COUNTIES
(a) Requirements for Certain Nonresidential and Residential
Development in the Coastal Counties. All nonresidential
development activities that occur within the Coastal Counties
that will add more than 10,000 square feet of built upon area or
that require a Sedimentation and Erosion Control Plan, pursuant
to G.S. 113A-57 or a CAMA Major Development Permit,
pursuant to G.S. 113A-118 and all residential development
activities within the Coastal Counties that require a
Sedimentation and Erosion Control Plan, pursuant to G.S. 113A-
57 or a CAMA Major Development Permit, pursuant to G.S.
113A-118 shall manage stormwater runoff as provided in Items
(1), (2), and (3) below. A development activity or project
requires a Sedimentation and Erosion Control Plan if the activity
or project disturbs one acre or more of land, including an activity
or project that disturbs less than one acre of land that is part of a
larger common plan of development. Whether an activity or
project that disturbs less than one acre of land is part of a larger
common plan of development shall be determined in a manner
consistent with the memorandum referenced as "Guidance
Interpreting Phase 2 Stormwater Requirements" from the
Director of the DWQ of the DENR to Interested Parties dated 24
July 2006.
(1) Development Near Outstanding Resource
Waters (ORW). Development activities within
the Coastal Counties and located within 575
feet of the mean high waterline of areas
designated by the Commission as Outstanding
Resource Waters (ORW) shall meet the
requirements of Rule .1007 of the Section and
shall be permitted as follows:
(A) Low Density Option. Development
shall be permitted pursuant to Rule
.1003(d)(1) of this Section if the
development meets all of the
following requirements:
(i) The development has a built
upon area of 12 percent or
less. A development project
with an overall density at or
below the low density
threshold, but containing
areas with a density greater
than the overall project
density, shall be considered
low density as long as the
project meets or exceeds the
requirements for low density
development and locates the
higher density development
in upland areas and away
from surface waters and
drainageways to the
maximum extent practicable.
(ii) Stormwater runoff from the
development is transported
primarily by vegetated
conveyances. The
conveyance system shall not
include a stormwater
collection system as defined
in Rule .1002 of this Section.
(iii) The development contains a
vegetative buffer in
accordance with Paragraph
(e) of this Rule.
(B) High Density Option. Development
shall be permitted pursuant to Rule
.1003(d)(2) of this Section if the
development meets all of the
following requirements:
(i) The development has a built
upon area of greater than 12
percent.
(ii) The development has no
direct outlet channels or
pipes to Class SA waters
unless permitted in
accordance with 15A NCAC
02H .0126.
(iii) The development utilizes
control systems that are any
combination of infiltration
systems, bioretention
systems, constructed
stormwater wetlands, sand
filters, rain barrels, cisterns,
rain gardens or alternative
low impact development
(LID) stormwater
management systems
designed in accordance with
Rule .1008 of this Section to
control and treat the greater
of, runoff from all surfaces
generated by one and one-half
inches of rainfall, or the
difference in the stormwater
runoff from all surfaces from
the predevelopment and
postdevelopment conditions
for a one-year, 24-hour
storm. Wet detention ponds
may be used as a stormwater
control system to meet the
requirements of this
Subparagraph (1)(B)(iii),
provided that the stormwater
control system fully
complies with the
requirements of
Subparagraph (1)(B). If a
wet detention pond is used
within one-half mile of Class
SA waters, installation of a
stormwater best
management practice in
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series with the wet detention
pond shall be required to
treat the discharge from the
wet detention pond.
Alternatives as described in
Rule .1008(h) of this Section
may also be approved if they
meet the requirements of
Subparagraph (1)(B).
(iv) Stormwater runoff from the
development that is in
excess of the design volume
must flow overland through
a vegetative filter designed
in accordance with Rule
.1008 of this Section with a
minimum length of 50 feet
measured from mean high
water of Class SA waters.
(v) The development contains a
vegetative buffer in
accordance with Paragraph
(e) of this Rule.
(C) Stormwater Discharges Prohibited.
All development activities, including
both low and high density projects,
shall prohibit new points of
stormwater discharge to Class SA
waters or an increase in the volume of
stormwater flow through
conveyances or increase in capacity
of conveyances of existing
stormwater conveyance systems that
drain to Class SA waters. Any
modification or redesign of a
stormwater conveyance system
within the contributing drainage basin
must not increase the net amount or
rate of stormwater discharge through
existing outfalls to Class SA waters.
The following shall not be considered
a direct point of stormwater
discharge:
(i) Infiltration of the stormwater
runoff from the design storm
as described in
Subparagraph (1)(B)(iii).
(ii) Diffuse flow of stormwater
at a non-erosive velocity to a
vegetated buffer or other
natural area, that is capable
of providing effective
infiltration of the runoff
from the design storm as
described in Subparagraph
(1)(B)(iii). Notwithstanding
the other requirements of
this Rule, the infiltration
mandated in this
Subparagraph (1)(C)(ii) does
not require a minimum
separation from the seasonal
high-water table.
(iii) The discharge from a wet
detention pond that is treated
by a secondary stormwater
best management practice,
provided that both the wet
detention pond and the
secondary stormwater best
management practice meet
the requirements of
Subparagraph (1)(C).
(D) Limitation on the Density of
Development. Development shall be
limited to a built upon area of 25
percent or less.
(2) Development Near Class SA Waters.
Development activities within one-half mile of
and draining to those waters classified by the
Commission as Class SA waters or within one-half
mile of waters classified by the
Commission as Class SA waters and draining
to unnamed freshwater tributaries to Class SA
waters shall meet the requirements of
Subparagraphs (1)(A), (B), and (C). The
extent of Class SA waters is limited to those
waters that are determined to be at least an
intermittent stream based on a site stream
determination made in accordance with the
procedures that are delineated in the Division's
"Identification Methods for the Origin of
Intermittent and Perennial Streams" prepared
pursuant to Session Law 2001-404.
(3) Other Coastal Development. Development
activities within the Coastal Counties except
those areas described in Items (1) and (2) of
this Paragraph shall meet all of the following
requirements:
(A) Low-Density Option. Development
shall be permitted pursuant to Rule
.1003(d)(1) of this Section if the
development meets all of the
following requirements:
(i) The development has a built
upon area of 24 percent or
less. A development project
with an overall density at or
below the low-density
threshold, but containing
areas with a density greater
than the overall project
density, shall be considered
low density as long as the
project meets or exceeds the
requirements for low-density
development and locates the
higher density in upland
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areas and away from surface
waters and drainageways to
the maximum extent
practicable.
(ii) Stormwater runoff from the
development is transported
primarily by vegetated
conveyances. The
conveyance system shall not
include a stormwater
collection system as defined
in Rule .1002 of this Section.
(iii) The development contains a
vegetative buffer in
accordance with Paragraph
(e) of this Rule.
(B) High-Density Option. Higher density
developments shall be permitted
pursuant to Rule .1003(d)(2) of this
Section if the development meets all
of the following requirements:
(i) The development has a built
upon area of greater than 24
percent.
(ii) The development uses
control systems that are any
combination of infiltration
systems, wet detention
ponds, bioretention systems,
constructed stormwater
wetlands, sand filters, rain
barrels, cisterns, rain gardens
or alternative stormwater
management systems
designed in accordance with
Rule .1008 of this Section.
(iii) Control systems must be
designed to store, control,
and treat the stormwater
runoff from all surfaces
generated by one and one-half
inch of rainfall.
(iv) The development contains a
vegetative buffer in
accordance with Paragraph
(e) of this Rule.
(b) Requirements for Limited Residential Development in
Coastal Counties. For residential development activities within
the 20 Coastal Counties that are located within one-half mile and
draining to Class SA waters, that have a built upon area greater
than 12 percent, that will add more than 10,000 square feet of
built upon area, and that does not require a Sedimentation and
Erosion Control Plan, pursuant to G.S. 113A-57 or a CAMA
Major Development Permit, pursuant to G.S. 113A-118, a one-time,
nonrenewable stormwater management permit shall be
obtained. The permit shall require recorded restrictions or
protective covenants to be recorded on the property in the Office
of the Register of Deeds in the county where the property is
located prior to the issuance of a certificate of occupancy in
order to ensure that the plans and specifications approved in the
permit are maintained. Under this permit, stormwater runoff
shall be managed using any one or combination of the following
practices:
(1) Install rain cisterns or rain barrels designed to
collect all rooftop runoff from the first one and
one-half inches of rain. Rain barrels and
cisterns shall be installed in such a manner as
to facilitate the reuse of the collected rain
water on site and shall be installed in such a
manner that any overflow from these devices
is directed to a vegetated area in a diffuse
flow. Construct all uncovered driveways,
uncovered parking areas, uncovered
walkways, and uncovered patios out of
permeable pavement or other pervious
materials.
(2) Direct rooftop runoff from the first one and
one-half inches of rain to an appropriately
sized and designed rain garden. Construct all
uncovered driveways, uncovered parking
areas, uncovered walkways, and uncovered
patios out of permeable pavement or other
pervious materials.
(3) Install any other stormwater best management
practice that meets the requirements of Rule
.1008 of this Section to control and treat the
stormwater runoff from all built upon areas of
the site from the first one and one-half inches
of rain.
(c) Requirements for Structural Stormwater Controls. Structural
stormwater controls required under this Rule shall meet all of the
following requirements:
(1) Remove an 85 percent average annual amount
of Total Suspended Solids.
(2) For detention ponds, draw down the treatment
volume no faster than 48 hours, but no slower
than 120 hours.
(3) Discharge the storage volume at a rate equal to
or less than the predevelopment discharge rate
for the one-year, 24-hour storm.
(4) Meet the General Engineering Design Criteria
set forth in Rule .1008(c) of this Section.
(5) For structural stormwater controls that require
separation from the seasonal high water table,
a minimum separation of two feet is required.
Where a separation of two feet from the
seasonal high water table is not practicable, the
Division may grant relief from the separation
requirement pursuant to the Alternative Design
Criteria set out in Rule .1008(h) of this
Section. No minimum separation from the
seasonal high water table is required for a
secondary stormwater best management
practice that is used in a series with another
stormwater best management practice.
(d) Wetlands. Developments regulated by this Rule that have
wetlands inside of, or adjacent to, the development must meet
the following requirements:
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(1) Areas defined as Coastal Wetlands under 15A
NCAC 07H .0205, as measured landward from
the normal high waterline, shall not be
included in the overall project area to calculate
impervious surface density. Wetlands that are
not regulated as coastal wetlands pursuant to
15A NCAC 07H .0205 and that are located
landward of the normal high waterline may be
included in the overall project area to calculate
impervious surface density.
(2) Stormwater runoff from built upon areas that
is directed to flow through any wetlands shall
flow into and through these wetlands at a non-erosive
velocity.
(e) Vegetative Buffer. Developments permitted under
Paragraph (a) shall contain a 50 foot wide vegetative buffer, as
defined in Rule .1002(22) of this Section, for new development
activities and a 30 foot wide vegetative buffer for redevelopment
activities. The vegetative buffer may be cleared or graded, but
must be planted with and maintained in grass or any other
vegetative or plant material. The Division may, on a case-by-case
basis, grant a minor variance from the vegetative buffer
requirements of this section pursuant to the procedures set out in
15A NCAC 02B .0233(9)(b). Vegetative buffers and filters
required by this section and any other buffers or filters required
by State water quality or coastal management rules or local
government requirements may be met concurrently and may
contain, in whole or in part, coastal, isolated, or 404
jurisdictional wetlands that are located landward of the normal
waterline.
(f) Exemptions From Vegetative Buffer Requirements. The
following activities are exempt from the vegetative buffer
requirements of Paragraph (e) of this Rule:
(1) Development in urban waterfronts that meets
the requirements of 15A NCAC 07H .0209(g),
(2) Development in a new urban waterfront area
that meets the requirements of S.L. 2004-117,
(3) Those activities listed in 15A NCAC 07H
.0209(d)(10)(A) through 15A NCAC 07H
.0209(d)(10)(H),
(4) Development of upland marinas that have
received or are required to secure a CAMA
Major Development Permit.
(g) Compliance with Other Rules. In addition to the
requirements specified in this section, activities regulated under
this section must also comply with any requirements of any
other applicable law or rule.
(h) Exclusions. The amended requirements of this Rule shall
not apply to any of the following:
(1) Activities of the North Carolina Department of
Transportation that are regulated in accordance
with the provisions of the Department's
National Pollutant Discharge Elimination
System (NPDES) Stormwater Permit.
(2) Development activities that are conducted
pursuant to and consistent with one of the
following authorizations, or any timely
renewal thereof, shall be regulated by those
provisions and requirements of this Rule that
were effective at the time of the original
issuance of the following authorizations:
(A) State Stormwater Permit issued under
the provisions of this Rule.
(B) Stormwater Certification issued
pursuant to Rule .1000 of this Section
prior to 1 December 1995.
(C) A CAMA Major Development
Permit.
(D) 401 Certification that contains an
approved Stormwater Management
Plan.
(E) A building permit pursuant to G.S.
153A-357 or G.S. 160A-417.
(F) A site-specific development plan as
defined by G.S. 153A-344.1(b)(5)
and G.S. 160A-385.1(b)(5).
(G) A phased development plan approved
pursuant to G.S. 153A-344.1 or G.S.
160A-385.1 that shows:
(i) For the initial or first phase
of development, the type and
intensity of use for a specific
parcel or parcels, including
at a minimum, the
boundaries of the project and
a subdivision plan that has
been approved pursuant to
G.S. 153A-330 through G.S.
153A-335 or G.S. 160A-371
through G.S. 160A-376.
(ii) For any subsequent phase of
development, sufficient
detail so that implementation
of the requirements of this
section to that phase of
development would require a
material change in that phase
of the plan.
(iii) A vested right to the
development pursuant to
common law.
(H) Redevelopment activities that result
in no net increase in built upon area
and provide stormwater control equal
to the previous development.
(I) Development activities for which a
complete Stormwater Permit
Application has been accepted by the
Division prior to October 1, 2008,
shall be regulated by the provisions
and requirements of this Rule that
were effective at the time that this
application was accepted as complete
by the Division. For purposes of this
Rule, a Stormwater Permit
Application is deemed accepted as
complete by the Division when the
application is assigned a permit
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number in the Division's Basinwide
Information Management System.
(J) Development activities for which
only a minor modification of a State
Stormwater Permit is required shall
be regulated by the provisions and
requirements of this Rule that were
effective at the time of the original
issuance of the State Stormwater
Permit. For purposes of this Rule, a
minor modification of a State
Stormwater Permit is defined as a
modification that does not increase
the net area of built upon area within
the project site or does not increase
the overall size of the stormwater
controls that have been previously
approved for that development
activity.
(K) Municipalities designated as a
National Pollutant Discharge
Elimination System (NPDES) Phase
2 municipality located within the 20
Coastal Counties until such time as
the NPDES Phase 2 Stormwater
Permit expires and is subject to
renewal. Upon renewal of the
NPDES Phase 2 Stormwater Permits
for municipalities located within the
20 Coastal Counties, the Department
shall review the permits to determine
whether the permits should be
amended to include the provisions of
this Rule.
History Note: Authority G.S. 143-214.1; 143-214.7; 143-
215.1; 143-215.3(a);
Eff. September 1, 1995;
This Rule is superseded by S.L. 2008-211 Eff. October 1, 2008;
Amended Eff. Pending Legislative Review.
15A NCAC 02H .1014 STORMWATER MANAGEMENT
FOR URBANIZING AREAS
(a) Stormwater discharges subject to National Pollutant
Discharge Elimination System (NPDES) permitting are
addressed in Section .0100 entitled "Point Source Discharges to
the Surface Waters," which incorporates, supplements and
elaborates on the federal rules for stormwater NPDES
discharges.
(b) Other stormwater control requirements are addressed in this
Section but may also be addressed in sections dedicated to
particular water classifications or circumstances. Projects
located in urbanizing areas, which are not subject to NPDES
permitting, must obtain permits in accordance with Rules .1014
through .1017 of this Section. For post-construction
requirements, a program will be deemed compliant for the areas
that satisfy Rule .1017(a)(9) of this Section.
History Note: Authority G.S. 143-214.1; 143-214.7; 143-
215.1; 143-215.3(a)(1);
Eff. Pending Legislative Review.
15A NCAC 02H .1015 URBANIZING AREA
DEFINITIONS
The definition of any word or phrase for Urbanizing Areas shall
be as follows:
(1) The definitions set out in 40 Code of Federal
Regulations § 122.2 and § 122.26(b) (1 July
2003 Edition).
(2) The definitions set out in G.S. 143-212 and
G.S. 143-213.
(3) The definitions set out in 15A NCAC 02H
.0103.
(4) The definitions set out in Rule .1002 of this
Section, except for the definitions of
"Development" and "Redevelopment", which
are defined below.
(5) "One-year, 24-hour storm" means a rainfall of
an intensity expected to be equaled or
exceeded, on average, once in 12 months and
with a duration of 24 hours.
(6) "BMP" means Best Management Practice.
(7) "Development" means any land-disturbing
activity that increases the amount of built-upon
area or that otherwise decreases the infiltration
of precipitation into the soil.
(8) "Division" means the Division of Water
Quality in the Department.
(9) "Planning jurisdiction" means the territorial
jurisdiction within which a municipality
exercises the powers authorized by G.S. 160A-
19, or a county may exercise the powers
authorized by G.S. 153A-18.
(10) "Public entity" means the United States; the
State; a city, village, township, county, school
district, public college or university, or single-purpose
governmental agency; or any other
governing body that is created by federal or
State law.
(11) "Redevelopment" means any land-disturbing
activity that does not result in a net increase in
built-upon area and that provides greater or
equal stormwater control than the previous
development.
(12) "Regulated entity" means any public entity
that must obtain a Phase II National Pollutant
Discharge Elimination System (NPDES)
permit for stormwater management for its
municipal separate storm sewer system (MS4).
(13) "Sensitive receiving waters" means any of the
following:
(14) Waters that are classified as high quality,
outstanding resource, shellfish, trout, or
nutrient-sensitive waters in accordance with
subsections (d) and (e) of 15A NCAC 02B
.0101.
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(15) Waters that are occupied by or designated as
critical habitat for aquatic animal species that
are listed as threatened or endangered by the
United States Fish and Wildlife Service or the
National Marine Fisheries Service under the
provisions of the Endangered Species Act of
1973 (Pub. L. No. 93-205; 87 Stat. 884; 16
U.S.C. §§ 1531, et seq.), as amended.
(16) Waters for which the designated use, as
described by the classification system set out
in subsections (c), (d), and (e) of 15A NCAC
02B .0101, have been determined to be
impaired in accordance with the requirements
of subsection (d) of 33 U.S.C. § 1313.
(17) "Significant contributor of pollutants" means a
municipal separate storm sewer system (MS4)
or a discharge that contributes to the pollutant
loading of a water body or that destabilizes the
physical structure of a water body such that the
contribution to pollutant loading or the
destabilization may reasonably be expected to
adversely affect the quality and uses of the
water body. Uses of a water body shall be
determined pursuant to 15A NCAC 02B .0211
through 15A NCAC 02B .0222 and 15A
NCAC 02B .0300, et seq.
(18) "Total maximum daily load (TMDL)
implementation plan" means a written,
quantitative plan and analysis for attaining and
maintaining water quality standards in all
seasons for a specific water body and
pollutant.
History Note: Authority G.S. 143-214.1; 143-214.7; 143-
215.1; 143-215.3(a)(1);
Eff. Pending Legislative Review.
15A NCAC 02H .1016 DEVELOPMENT IN
URBANIZING AREAS
(a) Development in Unincorporated Areas of Counties.
(1) Development that cumulatively disturbs one
acre or more of land located in the
unincorporated area of a county shall comply
with the standards set forth in Rule .1018 of
this Section beginning 1 July 2007 if the
development is located in:
(A) An area that is designated as an
urbanized area under the most recent
federal decennial census.
(B) The unincorporated area of a county
outside of a municipality designated
as an urbanized area under the most
recent federal decennial census that
extends:
(i) One mile beyond the
corporate limits of a
municipality with a
population of less than
10,000 individuals.
(ii) Two miles beyond the
corporate limits of a
municipality with a
population of 10,000 or
more individuals but less
than 25,000 individuals.
(iii) Three miles beyond the
corporate limits of a
municipality with a
population of 25,000 or
more individuals.
(C) An area delineated pursuant to Item
(2) of this Paragraph.
(D) A county that contains an area that is
designated as an urbanized area under
the most recent federal decennial
census in which the unduplicated sum
of: (i) the area that is designated as an
urbanized area under the most recent
federal decennial census; (ii) the area
described in Subparagraph (1)(B) of
this Paragraph; (iii) the area
delineated pursuant to Item (2) of this
Paragraph; (iv) the jurisdiction of a
regulated entity designated pursuant
to Paragraph (c) of this Rule; (v) the
area that is regulated by a Phase II
National Pollutant Discharge
Elimination System (NPDES) permit
for stormwater management required
pursuant to 15A NCAC 02H
.0151(b); and (vi) areas in the county
that are subject to any of the
stormwater management programs
administered by the Division equal or
exceed 75 percent of the total
geographic area of the county. For
purposes of this subdivision, the
stormwater programs administered by
the Division are:
(i) Water Supply Watershed I
(WS-I) – 15A NCAC 02B
.0212;
(ii) Water Supply Watershed II
(WS-II) – 15A NCAC 02B
.0214;
(iii) Water Supply Watershed III
(WS-III) – 15A NCAC 02B
.0215;
(iv) Water Supply Watershed IV
(WS-IV) – 15A NCAC 02B
.0216;
(v) High Quality Waters (HQW)
– Rule .1006 of this Section;
(vi) Outstanding Resource
Waters (ORW) – Rule .1007
of this Section;
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(vii) The Coastal Stormwater
Program – Rule .1005 of this
Section;
(viii) The Neuse River Basin
Nutrient Sensitive Waters
(NSW) Management
Strategy – 15A NCAC 02B
.0235;
(ix) The Tar-Pamlico River
Basin Nutrient Sensitive
(NSW) Management
Strategy – 15A NCAC 02B
.0258;
(x) The Randleman Lake Water
Supply Watershed Nutrient
Management Strategy – 15A
NCAC 02B .0251; and
(xi) Other Environmental
Management Commission
Nutrient Sensitive Waters
(NSW) Classifications –
15A NCAC 02B .0223.
(E) A county that contains an area that is
designated as an urbanized area under
the 1990 or 2000 federal decennial
census and that has an actual
population growth rate that exceeded
the State population growth rate for
the period 1995 through 2004.
(2) Delineation Process. The Commission shall
delineate regulated coverage areas as follows:
(A) Schedule: The Commission shall
implement the delineation process in
accordance with the schedule for
review and revision of basinwide
water quality management plans as
provided in G.S. 143-215.8B(c).
(B) Potential candidate coverage areas. A
potential candidate coverage area is
the unincorporated area of a county
that is outside a municipality
designated as a regulated entity
pursuant to Items (2) and (3) of
Paragraph (c) that:
(i) Extends one mile beyond the
corporate limits of a
municipality with a
population of less than
10,000 individuals;
(ii) Extends two miles beyond
the corporate limits of a
municipality with a
population of 10,000 or
more individuals but less
than 25,000 individuals; and
(iii) Extends three miles beyond
the corporate limits of a
municipality with a
population of 25,000 or
more individuals.
(C) Identification of candidate coverage
areas. The Commission shall identify
an area within a potential candidate
coverage area described in
Subparagraph (2)(B) of this
Paragraph as a candidate coverage
area if the discharge of stormwater
within or from the unincorporated
area has the potential to adversely
impact water quality. An adverse
impact on water quality includes any
activity that violates water quality
standards, including, but not limited
to, any activity that impairs
designated uses or that has a
significant biological or habitat
impact.
(D) Notice and comment on candidacy.
The Commission shall notify each
public entity that is located in whole
or in part in a candidate coverage
area. After notification of each public
entity, the Commission shall publish
a map of the unincorporated areas
within the river basin that have been
identified as candidates for
delineation as regulated coverage
areas. The Commission shall accept
public comment on the proposed
delineation of a candidate coverage
area as a regulated coverage area for a
period of not less than 30 days.
(E) Delineation of regulated coverage
areas. After review of public
comment, the Commission shall
delineate regulated coverage areas.
The Commission shall delineate a
candidate coverage area as a
regulated coverage area only if the
Commission determines that the
discharge of stormwater within or
from the candidate coverage area
either:
(i) Adversely impacts water
quality.
(ii) Results in a significant
contribution of pollutants to
sensitive receiving waters,
taking into account the
effectiveness of other
applicable water quality
protection programs. To
determine the effectiveness
of other applicable water
quality protection programs,
the Commission shall
consider the water quality of
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2500
the receiving waters and
whether the waters support
the uses set out in
Paragraphs (c), (d), and (e)
of 15A NCAC 02B .0101
(Procedures for Assignment
of Water Quality Standards
– General Procedures) and
the specific classification of
the waters set out in 15A
NCAC 02B .0300, et seq.
(Assignment of Stream
Classifications).
(F) Notice of delineation. The
Commission shall provide written
notice to each public entity that is
located in whole or in part in a
candidate coverage area of its
delineation determination. The notice
shall state the basis for the
determination.
(3) Except as provided in this Item (3) of this
Paragraph and Paragraph (d) of this Rule, the
Commission shall administer and enforce the
standards for development in the regulated
coverage areas. To the extent authorized by
law, where the development is located in a
municipal planning jurisdiction, the
municipality shall administer and enforce the
standards. A public entity may request that the
Commission delegate administration and
enforcement of the stormwater management
program to the public entity as provided in
Paragraph (d) of this Rule.
(b) Development in Non-Phase II Incorporated Areas in Certain
Counties. Development that cumulatively disturbs one acre or
more of land located in the incorporated areas of a county
described in Subparagraphs (2)(D) and (E) of Paragraph (a), that
are not designated as an urbanized area under the most recent
federal decennial census, shall comply with the standards set
forth in Rule .1018 of this Section beginning 1 July 2007. The
Commission shall administer and enforce the standards for
development unless the public entity requests that the
Commission delegate administration and enforcement of the
stormwater management program to the public entity as
provided in Paragraph (d) of this Rule.
(c) Designation of Regulated Entities. A public entity that owns
or operates a municipal separate storm sewer system (MS4) may
be designated as a regulated entity through federal designation,
through a State designation process, or under a total maximum
daily load (TMDL) implementation plan as provided in this
section.
(1) Federal designation. A public entity that owns
or operates a municipal separate storm sewer
system (MS4) may be designated as a
regulated entity pursuant to 40 Code of
Federal Regulations § 122.32 (1 July 2003
Edition).
(2) State designation process. The Commission
shall designate a public entity that owns or
operates a municipal separate storm sewer
system (MS4) as a regulated entity as follows:
(A) Designation schedule. The
Commission shall implement the
designation process in accordance
with the schedule for review and
revision of basinwide water quality
management plans as provided in
G.S. 143-215.8B(c).
(B) Identification of candidate regulated
entities. The Commission shall
identify a public entity as a candidate
for designation as a regulated entity if
the municipal separate storm sewer
system (MS4) either:
(i) Discharges stormwater that
has the potential to adversely
impact water quality. An
adverse impact on water
quality includes any activity
that causes or contributes to
a violation of water quality
standards, including, but not
limited to, any activity that
impairs designated uses or
that has a significant
biological or habitat impact.
(ii) Serves a public entity that
has not been designated
pursuant to Item (1) of this
Paragraph and that has either
a population of more than
10,000 or more than 4,000
housing units and either a
population density of 1,000
people per square mile or
more or more than 400
housing units per square
mile.
(C) Notice and comment on candidacy.
The Commission shall notify each
public entity identified as a candidate
for designation as a regulated entity.
After notification of each public
entity, the Commission shall publish
a list of all public entities within a
river basin that have been identified
as candidates for designation. The
Commission shall accept public
comment on the proposed designation
of a public entity as a regulated entity
for a period of not less than 30 days.
(D) Designation of regulated entities.
After review of the public comment,
the Commission shall make a
determination on designation for each
of the candidate public entities. The
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Commission shall designate a
candidate public entity that owns or
operates a municipal separate storm
sewer system (MS4) as a regulated
public entity only if the Commission
determines either that:
(i) The public entity has an
actual population growth
rate that exceeds 1.3 times
the State population growth
rate for the previous 10
years.
(ii) The public entity has a
projected population growth
rate that exceeds 1.3 times
the projected State
population growth rate for
the next 10 years.
(iii) The public entity has an
actual population increase
that exceeds 15 percent of its
previous population for the
previous two years.
(iv) The municipal separate
storm sewer system (MS4)
discharges stormwater that
adversely impacts water
quality.
(v) The municipal separate
storm sewer system (MS4)
discharges stormwater that
results in a significant
contribution of pollutants to
receiving waters, taking into
account the effectiveness of
other applicable water
quality protection programs.
To determine the
effectiveness of other
applicable water quality
protection programs, the
Commission shall consider
the water quality of the
receiving waters and
whether the waters support
the uses set out in
Paragraphs (c), (d), and (e)
of 15A NCAC 02B .0101
(Procedures for Assignment
of Water Quality Standards
– General Procedures) and
the specific classification of
the waters set out in 15A
NCAC 02B .0300, et seq.
(Assignment of Stream
Classifications).
(E) Notice of designation. The
Commission shall provide written
notice to each public entity of its
designation determination. For a
public entity designated as a
regulated entity, the notice shall state
the basis for the designation and the
date on which an application for a
Phase II National Pollutant Discharge
Elimination System (NPDES) permit
for stormwater management must be
submitted to the Commission.
(F) Application schedule. A public entity
that has been designated as a
regulated entity pursuant to this
subdivision must submit its
application for a Phase II National
Pollutant Discharge Elimination
System (NPDES) permit for
stormwater management within 18
months of the date of notification.
(3) Designation under a total maximum daily load
(TMDL) implementation plan. The
Commission shall designate an owner or
operator of a small municipal separate storm
sewer system (MS4) as a regulated entity if the
municipal separate storm sewer system (MS4)
is specifically listed by name as a source of
pollutants for urban stormwater in a total
maximum daily load (TMDL) implementation
plan developed in accordance with subsections
(d) and (e) of 33 U.S.C. § 1313. The
Commission shall provide written notice to
each public entity of its designation
determination. For a public entity designated
as a regulated entity, the notice shall state the
basis for the designation and the date on which
an application for a Phase II National Pollutant
Discharge Elimination System (NPDES)
permit for stormwater management must be
submitted to the Commission. A public entity
that has been designated as a regulated entity
pursuant to this subdivision must submit its
application for a Phase II National Pollutant
Discharge Elimination System (NPDES)
permit for stormwater management within 18
months of the date of notification.
(d) Delegation. A public entity that does not administer a Phase
II National Pollutant Discharge Elimination System (NPDES)
permit for stormwater management throughout the entirety of its
planning jurisdiction and whose planning jurisdiction includes a
regulated coverage area under Paragraphs (a) and (b) of this Rule
may submit a stormwater management program for its regulated
coverage area or a portion of its regulated coverage area to the
Commission for approval pursuant to G.S. 143-214.7(c). An
ordinance or regulation adopted by a public entity shall at least
meet and may exceed the minimum requirements of Rule .1018
of this Section. Two or more public entities are authorized to
establish a joint program and to enter into any agreements that
are necessary for the proper administration and enforcement of
the program. The resolution, memorandum of agreement, or
other document that establishes any joint program must be duly
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recorded in the minutes of the governing body of each public
entity participating in the program, and a certified copy of each
resolution must be filed with the Commission. The Commission
shall review each proposed program submitted to it to determine
whether the submission is complete. Within 90 days after the
receipt of a complete submission, the Commission shall notify
the public entity submitting the program that it has been
approved, approved with modifications, or disapproved. The
Commission shall only approve a program upon determining
that its standards equal or exceed those of Rule .1018 of this
Section. If the Commission determines that any public entity is
failing to administer or enforce an approved stormwater
management program, it shall notify the public entity in writing
and shall specify the deficiencies of administration and
enforcement. If the public entity has not taken corrective action
within 30 days of receipt of notification from the Commission,
the Commission shall assume administration and enforcement of
the program until such time as the public entity indicates its
willingness and ability to resume administration and
enforcement of the program.
History Note: Authority G.S. 143-214.1; 143-214.7; 143-
215.1; 143-215.3(a)(1);
Eff. Pending Legislative Review.
15A NCAC 02H .1017 POST-CONSTRUCTION
PRACTICES
(a) Requirements for Post-Construction Practices.
(1) Permittees, delegated programs, and regulated
entities must require stormwater controls for a
project that disturbs one acre or more of land,
including a project that disturbs less than one
acre of land that is part of a larger common
plan of development or sale. Whether an
activity or project that disturbs less than one
acre of land is part of a larger common plan of
development shall be determined in a manner
consistent with the memorandum referenced as
"Guidance Interpreting Phase 2 Stormwater
Requirements" from the Director of the DWQ
of the DENR to Interested Parties dated 24
July 2006. The stormwater controls shall be
appropriate to the project's level of density as
follows:
(A) Low Density Option. A project that
is located within any of the coastal
counties is a low density project if it
meets the low density requirements of
Rule .1005 of this Section. A project
that is not located within any of the
coastal counties is a low density
project if it contains no more than 24
percent built-upon area or no more
than two dwelling units per acre.
Low density projects must use
vegetated conveyances to the
maximum extent practicable to
transport stormwater runoff from the
project. On-site stormwater treatment
devices such as infiltration areas,
bioretention areas, and level spreaders
may also be used as added controls
for stormwater runoff. A project with
an overall density at or below the low
density thresholds, but containing
areas with a density greater than the
overall project density, may be
considered low density as long as the
project meets or exceeds the
requirements of this Subparagraph
(1)(A) and locates the higher density
development in upland areas and
away from surface waters and
drainageways to the maximum extent
practicable.
(B) High Density Option. A project that
is located within any of the coastal
counties is a high density project if it
meets the high density requirements
of Rule .1005 of this Section. A
project that is not located within any
of the coastal counties is a high
density project if it contains more
than 24 percent built-upon area or
more than two dwelling units per
acre. High density projects must use
structural stormwater management
systems that will control and treat
runoff from the first one inch of rain.
The structural stormwater
management system must also meet
the following design standards:
(i) Draw down the treatment
volume no faster than 48
hours, but no slower than
120 hours.
(ii) Discharge the storage
volume at a rate equal to or
less than the predevelopment
discharge rate for the one-year,
24-hour storm.
(iii) Remove an 85 percent
average annual amount of
Total Suspended Solids.
(iv) Meet the General
Engineering Design Criteria
set out in Rule .1008(c) of
this Section.
(v) Wet detention ponds
designed in accordance with
the requirements of Item (6)
of this Paragraph may be
used for projects draining to
Class SA waters.
(2) Permittees, delegated programs, and regulated
entities must require built-upon areas to be
located at least 30 feet landward of all
perennial and intermittent surface waters. For
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purposes of Paragraph (a), a surface water
shall be present if the feature is shown on
either the most recent version of the soil
survey map prepared by the Natural Resources
Conservation Service of the United States
Department of Agriculture or the most recent
version of the 1:24,000 scale (7.5 minute)
quadrangle topographic maps prepared by the
United States Geologic Survey (USGS).
Relief from this requirement may be allowed
when surface waters are not present in
accordance with the provisions of 15A NCAC
02B .0233(3)(a). In addition, an exception to
this requirement may be pursued in accordance
with Paragraph (c) of this Rule.
(3) Permittees, delegated programs, and regulated
entities must implement or require a fecal
coliform reduction program that controls, to
the maximum extent practicable, the sources
of fecal coliform. At a minimum, the program
shall include the development and
implementation of an oversight program to
ensure proper operation and maintenance of
on-site wastewater treatment systems for
domestic wastewater. For municipalities, this
program may be coordinated with local county
health departments.
(4) Permittees, delegated programs, and regulated
entities must impose or require recorded
restrictions and protective covenants to be
recorded on the property in the Office of the
Register of Deeds in the county where the
property is located prior to the issuance of a
certificate of occupancy in order to ensure that
development activities will maintain the
project consistent with approved plans.
(5) Permittees, delegated programs, and regulated
entities must implement or require an
operation and maintenance plan that ensures
the adequate long-term operation of the
structural best management practices (BMP)
required by the program. The operation and
maintenance plan must require the owner of
each structural BMP to submit a maintenance
inspection report on each structural BMP
annually to the local program.
(6) For areas draining to Class SA waters,
permittees, delegated programs, and regulated
entities must:
(A) Use BMPs that result in the highest
degree of fecal coliform die-off and
control to the maximum extent
practicable sources of fecal coliform
while still incorporating the
stormwater controls required by the
project's density level.
(B) Implement a program to control the
sources of fecal coliform to the
maximum extent practicable,
including a pet waste management
component, which may be achieved
by revising an existing litter
ordinance, and an on-site domestic
wastewater treatment systems
component to ensure proper operation
and maintenance of such systems,
which may be coordinated with local
county health departments.
(C) Meet the requirements of Rule
.1005(a)(2) of this Section.
(7) For areas draining to Trout Waters, permittees,
delegated programs, and regulated entities
must:
(A) Use BMPs that avoid a sustained
increase in the receiving water
temperature, while still incorporating
the stormwater controls required for
the project's density level.
(B) Allow on-site stormwater treatment
devices such as infiltration areas,
bioretention areas, and level spreaders
as added controls.
(8) For areas draining to Nutrient Sensitive
Waters, permittees, delegated programs, and
regulated entities must:
(A) Use BMPs that reduce nutrient
loading, while still incorporating the
stormwater controls required for the
project's density level. In areas where
the Department has approved a
Nutrient Sensitive Water Urban
Stormwater Management Program,
the provisions of that program fulfill
the nutrient loading reduction
requirement. Nutrient Sensitive Water
Urban Stormwater Management
Program requirements are found in
15A NCAC 02B .0200.
(B) Implement a nutrient application
management program for both
inorganic fertilizer and organic
nutrients to reduce nutrients entering
waters of the State.
(9) For post-construction requirements, a program
will be deemed compliant for the areas where
it is implementing any of the following
programs:
(A) Water Supply Watershed I (WS-I) –
15A NCAC 02B .0212;
(B) Water Supply Watershed II (WS-II) –
15A NCAC 02B .0214;
(C) Water Supply Watershed III (WS-III)
– 15A NCAC 02B .0215;
(D) Water Supply Watershed IV (WS-IV)
– 15A NCAC 02B .0216;
(E) Freshwater High Quality Waters
(HQW) – Rule .1006 of this Section;
APPROVED RULES
25:23 NORTH CAROLINA REGISTER JUNE 1, 2011
2504
(F) Freshwater Outstanding Resource
Waters (ORW) – Rule .1007 of this
Section;
(G) The Neuse River Basin Nutrient
Sensitive Waters (NSW)
Management Strategy – 15A NCAC
02B .0235;
(H) The Tar-Pamlico River Basin
Nutrient Sensitive (NSW)
Management Strategy – 15A NCAC
02B .0258; or
(I) The Randleman Lake Water Supply
Watershed Nutrient Management
Strategy – 15A NCAC 02B .0251.
(10) In order to fulfill the post-construction
minimum measure program requirement, a
permittee, delegated program, or regulated
entity may use the Department's model
ordinance, design its own post-construction
practices based on the Department's guidance
on scientific and engineering standards for
BMPs, incorporate the post-construction
model practices described in this act, or
develop its own comprehensive watershed
plan that is determined by the Department to
meet the post-construction stormwater
management measure required by 40 Code of
Federal Regulations § 122.34(b)(5) (1 July
2003 Edition).
(11) Nothing in this Paragraph (a) shall limit,
expand, or alter the requirement that a
discharge fully comply with all applicable
State or federal water quality standards.
(b) Exclusions from Post-Construction Practices. The post-construction
practices required by Paragraph (a) of this act shall
not apply to any of the following:
(1) Development in an area where the
requirements of Paragraph (a) of this act are
applicable that is conducted pursuant to one of
the following authorizations, provided that the
authorization was obtained prior to the
effective date of the post-construction
stormwater control requirements in the area
and the authorization is valid, unexpired,
unrevoked, and not otherwise terminated:
(A) A building permit pursuant to G.S.
153A-357 or G.S. 160A-417;
(B) A site-specific development plan as
defined by G.S. 153A-344.1(b)(5)
and G.S. 160A-385.1(b)(5);
(C) A phased development plan approved
pursuant to G.S. 153A-344.1 for a
project located in the unincorporated
area of a county that is subject to the
requirements of Paragraph (a), if the
Commission is responsible for
implementation of the requirements
of Paragraph (a), that shows:
(i) For the initial or first phase
of development, the type and
intensity of use for a specific
parcel or parcels, including
at a minimum, the
boundaries of the project and
a subdivision plan that has
been approved pursuant to
G.S. 153A-330 through G.S.
153A-335.
(ii) For any subsequent phase of
development, sufficient
detail so that implementation
of the requirements of
Paragraph (a) to that phase
of development would
require a material change in
that phase of the plan.
(D) A vested right to the development
under G.S. 153A-344(b), 153A-
344.1, 160A-385(b), or 160A-385.1
issued by a local government that
implements Paragraph (a); or
(E) A vested right to the development
pursuant to common law.
(2) Redevelopment as defined in Rule .1015 of
this Section.
(c) Exceptions. The Department or an appropriate local
authority, pursuant to Article 18 of G.S. 153A or Article 19 of
G.S. 160A, may grant exceptions from the 30-foot landward
location of built-upon area requirement as well as the deed
restrictions and protective covenants requirement as follows:
(1) An exception may be granted if the application
meets all of the following criteria:
(A) Unnecessary hardships would result
from strict application of the act;
(B) The hardships result from conditions
that are peculiar to the property, such
as the location, size, or topography of
the property;
(C) The hardships did not result from
actions taken by the petitioner; and
(D) The requested exception is consistent
with the spirit, purpose, and intent of
this act; will protect water quality;
will secure public safety and welfare;
and will preserve substantial justice.
Merely proving that the exception
would permit a greater profit from the
property shall not be considered
adequate justification for an
exception.
(2) Notwithstanding Item (1) of this Paragraph,
exceptions shall be granted in any of the
following instances:
(A) When there is a lack of practical
alternatives for a road crossing,
railroad crossing, bridge, airport
facility, or utility crossing as long as
APPROVED RULES
25:23 NORTH CAROLINA REGISTER JUNE 1, 2011
2505
it is located, designed, constructed,
and maintained to minimize
disturbance, provide maximum
nutrient removal, protect against
erosion and sedimentation, have the
least adverse effects on aquatic life
and habitat, and protect water quality
to the maximum extent practicable
through the use of BMPs.
(B) When there is a lack of practical
alternatives for a stormwater
management facility; a stormwater
management pond; or a utility,
including, but not limited to, water,
sewer, or gas construction and
maintenance corridor, as long as it is
located 15 feet landward of all
perennial and intermittent surface
waters and as long as it is located,
designed, constructed, and
maintained to minimize disturbance,
provide maximum nutrient removal,
protect against erosion and
sedimentation, have the least adverse
effects on aquatic life and habitat, and
protect water quality to the maximum
extent practicable through the use of
BMPs.
(C) A lack of practical alternatives may
be shown by demonstrating that,
considering the potential for a
reduction in size, configuration, or
density of the proposed activity and
all alternative designs, the basic
project purpose cannot be practically
accomplished in a manner which
would avoid or result in less adverse
impact to surface waters.
(3) Reasonable and appropriate conditions and
safeguards may be imposed upon any
exception granted.
(4) Local authorities must document the exception
procedure and submit an annual report to the
Department on all exception proceedings.
(5) Appeals of the Department's exception
decisions must be filed with the Office of
Administrative Hearings, under G.S. 150B-23.
Appeals of a local authority's exception
decisions must be made to the appropriate
Board of Adjustment or other appropriate local
governing body, under G.S. 160A-388 or G.S.
153A-345.
History Note: Authority G.S. 143-214.1; 143-214.7; 143-
215.1; 143-215.3(a)(1);
Eff. Pending Legislative Review.
* * * * * * * * * * * * * * * * * * * *
15A NCAC 13B .1604 GENERAL REQUIREMENTS
FOR MSWLF FACILITIES
(a) Applicability. Permits issued by the Division for new and
existing MSWLF facilities are subject to the requirements set
forth in this Rule.
(b) Terms of the Permit. The Solid Waste Management Permit
shall incorporate requirements necessary to comply with this
Subchapter and the North Carolina Solid Waste Management
Act including the provisions of this Paragraph.
(1) Division Approved Plan. Permits issued
subsequent to March 9, 1993 shall incorporate
a Division approved plan.
(A) The scope of the Division approved
plan shall be limited to the
information necessary to comply with
the requirements set forth in Rule
.1617 of this Section.
(B) The Division approved plans are
subject to and may be limited by the
conditions of the permit.
(C) The Division approved plans for a
new facility or permit renewal of an
existing facility shall be described in
the permit and shall include the
following:
(i) Facility plan;
(ii) Engineering plan and
Construction Quality
Assurance Plan;
(iii) Operation plan;
(iv) Monitoring plan; and
(v) Closure and post-closure
plan.
(2) Permit provisions. All disposal facilities shall
conform to the conditions set forth in the
permit and the following provisions. Nothing
in this Subparagraph shall be construed to
limit the conditions the Division may
otherwise impose on a permit:
(A) Duty to Comply. The permittee shall
comply with all conditions of the
permit.
(B) Duty to Mitigate. In the event of
noncompliance with the permit, the
permittee shall take all reasonable
steps to minimize releases to the
environment, and shall carry out such
measures as are reasonable to prevent
adverse impacts on human health or
the environment.
(C) Duty to Provide Information. The
permittee shall furnish to the
Division, any relevant information
which the Division may request to
determine whether cause exists for
modifying or revoking this permit, or
to determine compliance with this
permit. The permittee shall also
furnish to the Division, upon request,
APPROVED RULES
25:

This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
NORTH CAROLINA
REGISTER
VOLUME 25 ● ISSUE 23 ● Pages 2478 - 2539
June 01, 2011
I. APPROVED RULES ........................................................................................ 2478 – 2515
Administrative Hearings, Office of
Administrative Hearings, Office of
Cultural Resources, Department of
Department
Environment and Natural Resources, Department of
Environmental Management Commission
Public Health, Commission for
Well Contractors Certification Commission
Health and Human Services, Department of
Social Services Commission
Occupational Licensing Boards and Commission
Dental Examiners, Board of
Midwifery Joint Committee
Medical Board
Opticians, Board of
II. RULES REVIEW COMMISSION ................................................................. 2516 – 2523
III. CONTESTED CASE DECISIONS
Index to ALJ Decisions ...................................................................................... 2524 �� 2531
Text of ALJ Decisions
10 DST 5350 ................................................................................................... 2532 – 2539
PUBLISHED BY
The Office of Administrative Hearings
Rules Division
6714 Mail Service Center
Raleigh, NC 27699-6714
Telephone (919) 431-3000
Fax (919) 431-3104
Julian Mann, III, Director
Camille Winston, Deputy Director
Molly Masich, Codifier of Rules
Dana Vojtko, Publications Coordinator
Julie Edwards, Editorial Assistant
Tammara Chalmers, Editorial Assistant
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
Contact List for Rulemaking Questions or Concerns
For questions or concerns regarding the Administrative Procedure Act or any of its components, consult
with the agencies below. The bolded headings are typical issues which the given agency can address,
but are not inclusive.
Rule Notices, Filings, Register, Deadlines, Copies of Proposed Rules, etc.
Office of Administrative Hearings
Rules Division
1711 New Hope Church Road (919) 431-3000
Raleigh, North Carolina 27609 (919) 431-3104 FAX
contact: Molly Masich, Codifier of Rules molly.masich@oah.nc.gov (919) 431-3071
Dana Vojtko, Publications Coordinator dana.vojtko@oah.nc.gov (919) 431-3075
Julie Edwards, Editorial Assistant julie.edwards@oah.nc.gov (919) 431-3073
Tammara Chalmers, Editorial Assistant tammara.chalmers@oah.nc.gov (919) 431-3083
Rule Review and Legal Issues
Rules Review Commission
1711 New Hope Church Road (919) 431-3000
Raleigh, North Carolina 27609 (919) 431-3104 FAX
contact: Joe DeLuca Jr., Commission Counsel joe.deluca@oah.nc.gov (919) 431-3081
Bobby Bryan, Commission Counsel bobby.bryan@oah.nc.gov (919) 431-3079
Fiscal Notes & Economic Analysis and Governor's Review
Office of State Budget and Management
116 West Jones Street (919) 807-4700
Raleigh, North Carolina 27603-8005 (919) 733-0640 FAX
Contact: Anca Grozav, Economic Analyst osbmruleanalysis@osbm.nc.gov (919) 807-4740
NC Association of County Commissioners
215 North Dawson Street (919) 715-2893
Raleigh, North Carolina 27603
contact: Rebecca Troutman rebecca.troutman@ncacc.org
NC League of Municipalities (919) 715-4000
215 North Dawson Street
Raleigh, North Carolina 27603
contact: Erin L. Wynia ewynia@nclm.org
Legislative Process Concerning Rule-making
Joint Legislative Administrative Procedure Oversight Committee
545 Legislative Office Building
300 North Salisbury Street (919) 733-2578
Raleigh, North Carolina 27611 (919) 715-5460 FAX
contact: Karen Cochrane-Brown, Staff Attorney Karen.cochrane-brown@ncleg.net
Jeff Hudson, Staff Attorney Jeffrey.hudson@ncleg.net
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
NORTH CAROLINA REGISTER
Publication Schedule for January 2011 – December 2011
FILING DEADLINES NOTICE OF TEXT PERMANENT RULE TEMPORARY
RULES
Volume &
issue
number
Issue date Last day
for filing
Earliest date for
public hearing
End of required
comment
period
Deadline to submit
to RRC
for review at
next meeting
Earliest Eff.
Date of
Permanent Rule
Delayed Eff. Date of
Permanent Rule
31st legislative day of the
session beginning:
270th day from publication
in the Register
25:13 01/03/11 12/08/10 01/18/11 03/04/11 03/21/11 05/01/11 05/2012 09/30/11
25:14 01/18/11 12/22/10 02/02/11 03/21/11 03/21/11 05/01/11 05/2012 10/15/11
25:15 02/01/11 01/10/11 02/16/11 04/04/11 04/20/11 06/01/11 05/2012 10/29/11
25:16 02/15/11 01/25/11 03/02/11 04/18/11 04/20/11 06/01/11 05/2012 11/12/11
25:17 03/01/11 02/08/11 03/16/11 05/02/11 05/20/11 07/01/11 05/2012 11/26/11
25:18 03/15/11 02/22/11 03/30/11 05/16/11 05/20/11 07/01/11 05/2012 12/10/11
25:19 04/01/11 03/11/11 04/16/11 05/31/11 06/20/11 08/01/11 05/2012 12/27/11
25:20 04/15/11 03/25/11 04/30/11 06/14/11 06/20/11 08/01/11 05/2012 01/10/12
25:21 05/02/11 04/08/11 05/17/11 07/01/11 07/20/11 09/01/11 05/2012 01/27/12
25:22 05/16/11 04/25/11 05/31/11 07/15/11 07/20/11 09/01/11 05/2012 02/10/12
25:23 06/01/11 05/10/11 06/16/11 08/01/11 08/22/11 10/01/11 05/2012 02/26/12
25:24 06/15/11 05/24/11 06/30/11 08/15/11 08/22/11 10/01/11 05/2012 03/11/12
26:01 07/01/11 06/10/11 07/16/11 08/30/11 09/20/11 11/01/11 05/2012 03/27/12
26:02 07/15/11 06/23/11 07/30/11 09/13/11 09/20/11 11/01/11 05/2012 04/10/12
26:03 08/01/11 07/11/11 08/16/11 09/30/11 10/20/11 12/01/11 05/2012 04/27/12
26:04 08/15/11 07/25/11 08/30/11 10/14/11 10/20/11 12/01/11 05/2012 05/11/12
26:05 09/01/11 08/11/11 09/16/11 10/31/11 11/21/11 01/01/12 05/2012 05/28/12
26:06 09/15/11 08/24/11 09/30/11 11/14/11 11/21/11 01/01/12 05/2012 06/11/12
26:07 10/03/11 09/12/11 10/18/11 12/02/11 12/20/11 02/01/12 05/2012 06/29/12
26:08 10/17/11 09/26/11 11/01/11 12/16/11 12/20/11 02/01/12 05/2012 07/13/12
26:09 11/01/11 10/11/11 11/16/11 01/03/12 01/20/12 03/01/12 05/2012 07/28/12
26:10 11/15/11 10/24/11 11/30/11 01/17/12 01/20/12 03/01/12 05/2012 08/11/12
26:11 12/01/11 11/07/11 12/16/11 01/30/12 02/20/12 04/01/12 05/2012 08/27/12
26:12 12/15/11 11/22/11 12/30/11 02/13/12 02/20/12 04/01/12 05/2012 09/10/12
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
EXPLANATION OF THE PUBLICATION SCHEDULE
This Publication Schedule is prepared by the Office of Administrative Hearings as a public service and the computation of time periods are not to be deemed binding or controlling.
Time is computed according to 26 NCAC 2C .0302 and the Rules of Civil Procedure, Rule 6.
GENERAL
The North Carolina Register shall be published twice
a month and contains the following information
submitted for publication by a state agency:
(1) temporary rules;
(2) notices of rule-making proceedings;
(3) text of proposed rules;
(4) text of permanent rules approved by the Rules
Review Commission;
(5) notices of receipt of a petition for municipal
incorporation, as required by G.S. 120-165;
(6) Executive Orders of the Governor;
(7) final decision letters from the U.S. Attorney
General concerning changes in laws affecting
voting in a jurisdiction subject of Section 5 of
the Voting Rights Act of 1965, as required by
G.S. 120-30.9H;
(8) orders of the Tax Review Board issued under
G.S. 105-241.2; and
(9) other information the Codifier of Rules
determines to be helpful to the public.
COMPUTING TIME: In computing time in the
schedule, the day of publication of the North Carolina
Register is not included. The last day of the period so
computed is included, unless it is a Saturday, Sunday,
or State holiday, in which event the period runs until
the preceding day which is not a Saturday, Sunday, or
State holiday.
FILING DEADLINES
ISSUE DATE: The Register is published on the first
and fifteen of each month if the first or fifteenth of
the month is not a Saturday, Sunday, or State holiday
for employees mandated by the State Personnel
Commission. If the first or fifteenth of any month is
a Saturday, Sunday, or a holiday for State employees,
the North Carolina Register issue for that day will be
published on the day of that month after the first or
fifteenth that is not a Saturday, Sunday, or holiday for
State employees.
LAST DAY FOR FILING: The last day for filing for any
issue is 15 days before the issue date excluding
Saturdays, Sundays, and holidays for State
employees.
NOTICE OF TEXT
EARLIEST DATE FOR PUBLIC HEARING: The hearing
date shall be at least 15 days after the date a notice of
the hearing is published.
END OF REQUIRED COMMENT PERIOD
An agency shall accept comments on the text of a
proposed rule for at least 60 days after the text is
published or until the date of any public hearings held
on the proposed rule, whichever is longer.
DEADLINE TO SUBMIT TO THE RULES REVIEW
COMMISSION: The Commission shall review a rule
submitted to it on or before the twentieth of a month
by the last day of the next month.
FIRST LEGISLATIVE DAY OF THE NEXT REGULAR
SESSION OF THE GENERAL ASSEMBLY: This date is
the first legislative day of the next regular session of
the General Assembly following approval of the rule
by the Rules Review Commission. See G.S. 150B-
21.3, Effective date of rules.
APPROVED RULES
25:23 NORTH CAROLINA REGISTER JUNE 1, 2011
2478
This Section includes a listing of rules approved by the Rules Review Commission followed by the full text of those rules. The
rules that have been approved by the RRC in a form different from that originally noticed in the Register or when no notice was
required to be published in the Register are identified by an * in the listing of approved rules. Statutory Reference: G.S. 150B-
21.17.
Rules approved by the Rules Review Commission at its meeting on March 17, 2011.
REGISTER CITATION TO THE
NOTICE OF TEXT
CULTURAL RESOURCES, DEPARTMENT OF
Library Collections 07NCAC 02H .0102* 25:09 NCR
Depository Requirements for State Agencies 07 NCAC 02H .0203* 25:09 NCR
Circulation 07NCAC 02H .0305* 25:09 NCR
SOCIAL SERVICES COMMISSION
Goals and Strategies 10ANCAC 70B .0105* 25:13 NCR
PUBLIC HEALTH, COMMISSION FOR
General Requirements for MSWLF Facilities 15A NCAC 13B .1604* 25:04 NCR
Operational Requirements for MSWLF Facilities 15A NCAC 13B .1626* 25:04 NCR
Assessment of Corrective Measures 15ANCAC 13B .1635* 25:04 NCR
WELL CONTRACTORS CERTIFICATION COMMISSION
Application for Certification 15ANCAC 27 .0301* 25:12 NCR
Requirements of Certification 15ANCAC 27 .0702* 25:12 NCR
DENTAL EXAMINERS, BOARD OF
Definitions 21NCAC 16A .0101* 25:12 NCR
Corporate or Limited Liability Company Name 21 NCAC 16F .0103* 24:23 NCR
Dentists 21NCAC 16M .0101 25:12 NCR
MEDICAL BOARD
Fee 21NCAC 32F .0103 25:10 NCR
MIDWIFERY JOINT COMMITTEE
Suspension of Authority to Expend Funds 21 NCAC 33 .0108 25:13 NCR
These rules are subject to the next Legislative Session. (See G.S. 150B-21.3(b1))
ENVIRONMENTAL MANAGEMENT COMMISSION
Definitions 15ANCAC02H .1002 25:10 NCR
OPTICIANS, STATE BOARD OF
Complaints, Preliminary Determinations 21 NCAC 40 .0214* 25:10 NCR
APPROVED RULES
25:23 NORTH CAROLINA REGISTER JUNE 1, 2011
2479
The following Rules were not subject to approval by the Rules Review Commission. (See S.L. 2006-246)
ENVIRONMENTAL MANAGEMENT COMMISSION
Stormwater Discharges 15ANCAC 02H .0126* 25:10 NCR
Definitions 15ANCAC02H .0150 25:10 NCR
Designation and Petition Process 15ANCAC02H .0151* 25:10 NCR
Development in Urbanizing Areas 15ANCAC02H .0152* 25:10 NCR
Program Implementation 15ANCAC02H .0153* 25:10 NCR
Post-Construction Practices 15ANCAC02H .0154* 25:10 NCR
Stormwater Requirements: Coastal Counties 15A NCAC 02H .1005* 25:10 NCR
Stormwater Management for Urbanizing Areas 15A NCAC 02H .1014* 25:10 NCR
Urbanizing Area Definitions 15ANCAC02H .1015 25:10 NCR
Development in Urbanizing Areas 15ANCAC02H .1016* 25:10 NCR
Post-Construction Practices 15ANCAC02H .1017* 25:10 NCR
TITLE 07 – DEPARTMENT OF CULTURAL RESOURCES
07 NCAC 02H .0102 LIBRARY COLLECTIONS
(a) The State Librarian shall determine the scope and focus of
the Library's collections. Library staff and users may
recommend materials for Library collections.
(b) The Library shall collect and maintain resource collections
in all relevant formats as budgets permit, including current and
historical print and digital books, periodicals, newspapers, maps,
state and federal documents, family histories, indexes, and
bibliographies; historical newspapers, census reports, and
primary source materials on microfilm; audiovisual materials in
analog and digital formats and media; and online databases.
History Note: Authority G.S. 125-2; 143B-10;
Eff. May 1, 2011.
07 NCAC 02H .0203 DEPOSITORY REQUIREMENTS
FOR STATE AGENCIES
(a) State agencies in the executive, legislative, and judicial
branches of State government and State-funded boards,
commissions, and institutions shall submit all State publications
and documents defined in the G.S. 125-11.6(2) and 125-11.6(4)
to the North Carolina State Publications Clearinghouse for the
permanent depository collection, distribution to depository
libraries, and public access.
(b) State agencies in the executive, legislative, and judicial
branches of State government and State-funded boards,
commissions, and institutions shall submit 10 copies of
documents and State publications as defined in G.S. 125-11.6(2)
and 125-11.6(4) in tangible formats to the North Carolina State
Publications Clearinghouse and one copy of publications
published or distributed in electronic formats to the North
Carolina State Publications Clearinghouse.
History Note: Authority G.S. 125-2; 125-11.9;
Eff. May 1, 2011.
07 NCAC 02H .0305 CIRCULATION
(a) The Library shall provide materials and playback equipment
according to the Library of Congress lending policies.
(b) The Library shall furnish deposit collections to libraries,
hospitals, rest homes, and other institutions serving eligible
visually and physically handicapped persons.
(c) The following practices by any Library patron shall result in
the suspension of Library services:
(1) repeated failure to return materials within the
borrowing period;
(2) willful and negligent damage to equipment or
materials;
(3) unauthorized use of materials or equipment,
such as loan to an ineligible person or
modification of equipment; or
(4) repeated abusive verbal attacks or behavior
toward Library staff that is offensive or
threatening.
History Note: Authority G.S. 125-2; 143B-10;
Eff. May 1, 2011.
TITLE 10A – DEPARTMENT OF HEALTH AND HUMAN
SERVICES
10A NCAC 70B .0105 GOALS AND STRATEGIES
(a) The goal for each fiscal year commencing with the fiscal
year which begins on October 1, 2011 is that of all the children
in foster care receiving Title IV-E Foster Care Assistance the
number of children who remain in foster care in excess of 24
months will decrease by 1.5 percent.
(b) The following steps shall be taken to achieve the goal stated
in (a) of this Rule. The Department of Health and Human
Services shall:
APPROVED RULES
25:23 NORTH CAROLINA REGISTER JUNE 1, 2011
2480
(1) provide a preplacement preventive services
program designed to help children remain with
their families;
(2) provide a post placement reunification services
program designed to reunite children with their
families in a timely fashion;
(3) maintain a statewide information system;
(4) insure that there is an individual case plan for
each child in foster care;
(5) insure that the status of each child is reviewed
no less frequently than once every six months;
(6) institute procedural safeguards to assure each
child of a dispositional hearing in accordance
with statutory requirements; and
(7) institute procedural safeguards with respect to
parental rights to be informed of changes in
the child's placement and to visit the child.
History Note: Authority G.S. 108A-49; 143B-153; P.L. 96-
272;
Temporary Rule Eff. October 1, 1982, for a Period of 92 Days to
Expire on January 1, 1983;
Eff. January 1, 1983;
Amended Eff. October 1, 2011; June 1, 1990.
TITLE 15A – DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES
15A NCAC 02H .0126 STORMWATER DISCHARGES
(a) Stormwater discharges subject to NPDES permitting are
addressed in this section, which incorporates, supplements and
elaborates on the federal rules on stormwater NPDES
discharges. Other stormwater control requirements are
addressed in Section 02H .1000 entitled "Stormwater
Management", but may also be addressed in sections dedicated
to particular water classifications or circumstances.
(b) Facilities and Regulated Entities (REs), subject to NPDES
permitting, shall be issued NPDES permits for stormwater
discharges to surface waters, in accordance with this Rule, 15A
NCAC 02H .0150 through 02H .0154, and United States
Environmental Protection Agency (EPA) regulations 40 CFR
122.21, 122.26, and 122.28 through 122.37 which are hereby
incorporated by reference including any subsequent
amendments. These federal regulations can be accessed on the
world wide web at http://www.gpoaccess.gov/cfr/index.html.
State regulations can be accessed on the world wide web at
http://www.ncoah.com/rules.
History Note: Authority G.S. 143-214.1; 143-214.7; 143-
215.1; 143-215.3(a)(1);
Eff. November 1, 1986;
Amended Eff. August 3, 1992;
Temporary Amendment Eff. November 1, 2002;
Temporary Amendment returned to Agency by Rules Review
Commission on January 22, 2004;
Amended Eff. Pending Legislative Review.
15A NCAC 02H .0150 DEFINITIONS
Federal definitions for NPDES discharges at 40 C.F.R. 122.2
and 122.26(b), are incorporated herein by reference. State
definitions for NPDES discharges are set out in G.S. 143-212
through G.S. 143-213 and 15A NCAC 02H .0103. As used in
the NPDES stormwater program, the following additional
definitions apply:
(1) The definitions set out in 15A NCAC 02H
.1002 (Definitions).
(2) "Division" means the Division of Water
Quality in the Department.
(3) "Planning jurisdiction" means the territorial
jurisdiction within which a municipality
exercises the powers authorized by Article 19
of Chapter 160A of the General Statutes, or a
county may exercise the powers authorized by
Article 18 of Chapter 153A of the General
Statutes.
(4) "Public entity" means the United States; the
State; a city, village, township, county, school
district, public college or university, or single-purpose
governmental agency; or any other
governing body that is created by federal or
State law.
(5) "Regulated entity" means any public entity
that must obtain a Phase II National Pollutant
Discharge Elimination System (NPDES)
permit for stormwater management for its
municipal separate storm sewer system (MS4).
(6) "Sensitive receiving waters" means any of the
following:
(a) Waters that are classified as high
quality, outstanding resource,
shellfish, trout, or nutrient sensitive
waters in accordance with Paragraphs
(d) and (e) of 15A NCAC 02B .0101
(Procedures for Assignment of Water
Quality Standards – General
Procedures).
(b) Waters that are occupied by or
designated as critical habitat for
aquatic animal species that are listed
as threatened or endangered by the
United States Fish and Wildlife
Service or the National Marine
Fisheries Service under the provisions
of the Endangered Species Act of
1973 (Pub. L. No. 93-205; 87 Stat.
884; 16 U.S.C. § 1531, et seq.), as
amended.
(c) Waters for which the designated use,
as described by the classification
system set out in Paragraphs (c), (d),
and (e) of 15A NCAC 02B .0101
(Procedures for Assignment of Water
Quality Standards – General
Procedures), have been determined to
be impaired in accordance with the
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requirements of subsection (d) of 33
U.S.C. §§ 1313.
(7) "Significant contributor of pollutants" means a
municipal separate storm sewer system (MS4)
or a discharge that contributes to the pollutant
loading of a water body or that destabilizes the
physical structure of a water body such that the
contribution to pollutant loading or the
destabilization may reasonably be expected to
adversely affect the quality and uses of the
water body. Uses of a water body shall be
determined pursuant to 15A NCAC 02B .0211
through 15A NCAC 02B .0222
(Classifications and Water Quality Standards
Applicable to Surface Waters and Wetlands of
North Carolina) and 15A NCAC 02B .0300, et
seq. (Assignment of Stream Classifications).
(8) "Total maximum daily load (TMDL)
implementation plan" means a written,
quantitative plan and analysis for attaining and
maintaining water quality standards in all
seasons for a specific water body and
pollutant.
History Note: Authority G.S. 143-213; 143-214.1; 143-
214.7; 143-215.3(a)(1);
Eff. Pending Legislative Review.
15A NCAC 02H .0151 DESIGNATION AND PETITION
PROCESS
(a) Designation of Regulated Entities. A public entity that owns
or operates a municipal separate storm sewer system (MS4) may
be designated as a regulated entity through federal designation,
through a State designation process, or under a total maximum
daily load (TMDL) implementation plan as provided in this
Paragraph.
(1) Federal designation. A public entity that owns
or operates a municipal separate storm sewer
system (MS4) may be designated as a
regulated entity pursuant to 40 Code of
Federal Regulations § 122.32.
(2) State designation process. The Commission
shall designate a public entity that owns or
operates a municipal separate storm sewer
system (MS4) as a regulated entity as provided
in Subparagraphs (2)(A) through (F) below:
(A) Designation schedule. The
Commission shall implement the
designation process in accordance
with the schedule for review and
revision of basinwide water quality
management plans as provided in
G.S. 143-215.8B(c).
(B) Identification of candidate regulated
entities. The Commission shall
identify a public entity as a candidate
for designation as a regulated entity if
the municipal separate storm sewer
system (MS4) either:
(i) Discharges stormwater that
has the potential to adversely
impact water quality. An
adverse impact on water
quality includes any activity
that causes or contributes to
a violation of water quality
standards, including, but not
limited to, any activity that
impairs designated uses or
that has a significant
biological or habitat impact;
or
(ii) Serves a public entity that
has not been designated
pursuant to Item (1) of this
Paragraph and that has either
a population of more than
10,000 or more than 4,000
housing units and either a
population density of 1,000
people per square mile or
more or more than 400
housing units per square
mile.
(C) Notice and comment on candidacy.
The Commission shall notify each
public entity identified as a candidate
for designation as a regulated entity.
After notification of each public
entity, the Commission shall publish
a list of all public entities within a
river basin that have been identified
as candidates for designation. The
Commission shall accept public
comment on the proposed designation
of a public entity as a regulated entity
for a period of not less than 30 days.
(D) Designation of regulated entities.
After review of the public comment,
the Commission shall make a
determination on designation for each
of the candidate public entities. The
Commission shall designate a
candidate public entity that owns or
operates a municipal separate storm
sewer system (MS4) as a regulated
public entity only if the Commission
determines either that:
(i) The public entity has an
actual population growth
rate that exceeds 1.3 times
the State population growth
rate for the previous 10
years;
(ii) The public entity has a
projected population growth
rate that exceeds 1.3 times
the projected State
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population growth rate for
the next 10 years;
(iii) The public entity has an
actual population increase
that exceeds 15 percent of its
previous population for the
previous two years;
(iv) The municipal separate
storm sewer system (MS4)
discharges stormwater that
adversely impacts water
quality; or
(v) The municipal separate
storm sewer system (MS4)
discharges stormwater that
results in a significant
contribution of pollutants to
receiving waters, taking into
account the effectiveness of
other applicable water
quality protection programs.
To determine the
effectiveness of other
applicable water quality
protection programs, the
Commission shall consider
the water quality of the
receiving waters and
whether the waters support
the uses set out in
Paragraphs (c), (d), and (e)
of 15A NCAC 02B .0101
(Procedures for Assignment
of Water Quality Standards
– General Procedures) and
the specific classification of
the waters set out in 15A
NCAC 02B .0300, et seq.
(Assignment of Stream
Classifications).
(E) Notice of designation. The
Commission shall provide written
notice to each public entity of its
designation determination. For a
public entity designated as a
regulated entity, the notice shall state
the basis for the designation and the
date on which an application for a
Phase II National Pollutant Discharge
Elimination System (NPDES) permit
for stormwater management must be
submitted to the Commission.
(F) Application schedule. A public entity
that has been designated as a
regulated entity pursuant to this
subdivision must submit its
application for a Phase II National
Pollutant Discharge Elimination
System (NPDES) permit for
stormwater management within 18
months of the date of notification.
(3) Designation under a total maximum daily load
(TMDL) implementation plan. The
Commission shall designate an owner or
operator of a small municipal separate storm
sewer system (MS4) as a regulated entity if the
municipal separate storm sewer system (MS4)
is specifically listed by name as a source of
pollutants for urban stormwater in a total
maximum daily load (TMDL) implementation
plan developed in accordance with subsections
(d) and (e) of 33 U.S.C. § 1313. The
Commission shall provide written notice to
each public entity of its designation
determination. For a public entity designated
as a regulated entity, the notice shall state the
basis for the designation and the date on which
an application for a Phase II National Pollutant
Discharge Elimination System (NPDES)
permit for stormwater management must be
submitted to the Commission. A public entity
that has been designated as a regulated entity
pursuant to this Item must submit its
application for a Phase II National Pollutant
Discharge Elimination System (NPDES)
permit for stormwater management within 18
months of the date of notification.
(b) Petition Process. A petition may be submitted to the
Commission to request that an owner or operator of a municipal
separate storm sewer system (MS4) or a person who discharges
stormwater be required to obtain a Phase II National Pollutant
Discharge Elimination System (NPDES) permit for stormwater
management as follows:
(1) Connected discharge petition. An owner or
operator of a permitted municipal separate
storm sewer system (MS4) may submit a
petition to the Commission to request that a
person who discharges into the permitted
municipal separate storm sewer system (MS4)
be required to obtain a separate Phase II
National Pollutant Discharge Elimination
System (NPDES) permit for stormwater
management. The Commission shall grant the
petition and require the person to obtain a
separate Phase II National Pollutant Discharge
Elimination System (NPDES) permit for
stormwater management if the petitioner
shows that the person's discharge flows or will
flow into the permitted municipal separate
storm sewer system (MS4).
(2) Adverse impact petition. Any person may
submit a petition to the Commission to request
that an owner or operator of a municipal
separate storm sewer system (MS4) or a
person who discharges stormwater be required
to obtain a Phase II National Pollutant
Discharge Elimination System (NPDES)
permit for stormwater management as follows:
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2483
(A) Petition review. The Commission
shall grant the petition and require the
owner or operator of the municipal
separate storm sewer system (MS4)
or the person who discharges
stormwater to obtain a Phase II
National Pollutant Discharge
Elimination System (NPDES) permit
for stormwater management if the
petitioner shows any of the following:
(i) The municipal separate
storm sewer system (MS4)
or the discharge discharges
or has the potential to
discharge stormwater that
may cause or contribute to a
water quality standard
violation;
(ii) The municipal separate
storm sewer system (MS4)
or the discharge provides a
significant contribution of
pollutants to receiving
waters;
(iii) The municipal separate
storm sewer system (MS4)
or the discharge is
specifically listed by name
as a source of pollutants for
urban stormwater in a total
maximum daily load
(TMDL) implementation
plan developed in
accordance with subsections
(d) and (e) of 33 U.S.C. §
1313.
(B) Types of evidence for required
showing. Petitioners may make the
required showing by providing to the
Commission the following
information:
(i) Monitoring data that
includes, at a minimum,
representative sampling of
the municipal separate storm
sewer system (MS4) or
discharge and information
describing how the sampling
is representative. The
petitioner must notify the
owner or operator of the
municipal separate storm
sewer system (MS4) or the
person who discharges
stormwater of its intent to
conduct monitoring
activities prior to conducting
those activities;
(ii) Scientific or technical
literature that supports the
sampling methods;
(iii) Study and technical
information on land uses in
the drainage area and the
characteristics of stormwater
runoff from these land uses;
(iv) A map that delineates the
drainage area of the
petitioned entity; the
location of sampling
stations; the location of the
stormwater outfalls in the
adjacent area of the
sampling locations; general
features, including, but not
limited to, surface waters,
major roads, and political
boundaries; and areas of
concern regarding water
quality;
(v) For stormwater discharges to
impaired waters,
documentation that the
receiving waters are
impaired or degraded and
monitoring data that
demonstrates that the
municipal separate storm
sewer system (MS4) or
discharge contributes
pollutants for which the
waters are impaired or
degraded;
(vi) For stormwater discharges to
nonimpaired waters,
monitoring data that
demonstrates that the owner
or operator of the municipal
separate storm sewer system
(MS4) or the person who
discharges stormwater is a
significant contributor of
pollutants to the receiving
waters.
(C) Water quality protection program
offset. If the petitioner makes the
required showing, the Commission
shall review the effectiveness of any
existing water quality protection
programs that may offset the need to
obtain a Phase II National Pollutant
Discharge Elimination System
(NPDES) permit for stormwater
management. To determine the
effectiveness of other applicable
water quality protection programs,
the Commission shall consider the
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water quality of the receiving waters
and whether the waters support the
uses set out in Paragraphs (c), (d),
and (e) of 15A NCAC 02B .0101
(Procedures for Assignment of Water
Quality Standards – General
Procedures) and the specific
classification of the waters set out in
15A NCAC 2B .0300, et seq.
(Assignment of Stream
Classifications). The Commission
may deny the petition if it finds that
existing water quality protection
programs are adequate to address
stormwater impacts on sensitive
receiving waters and to ensure
compliance with a TMDL
implementation plan.
(3) Petition administration. The Commission shall
process petitions in the following manner:
(A) The Commission shall only accept
petitions submitted on Department
forms.
(B) A separate petition must be filed for
each municipal separate storm sewer
system (MS4) or discharge.
(C) The Commission shall evaluate only
complete petitions. The Commission
shall make a determination on the
completeness of a petition within 90
days of receipt of the petition, or it
shall be deemed complete. If the
Commission requests additional
information, the petitioner may
submit additional information; and
the Commission will determine,
within 90 days of receipt of the
additional information, whether the
information completes the petition.
(D) The petitioner shall provide a copy of
the petition and a copy of any
subsequent additional information
submitted to the Commission to the
chief administrative officer of the
municipal separate storm sewer
system (MS4) or the person in control
of the discharge within 48 hours of
each submittal.
(E) The Commission shall post all
petitions on the Division Web site
and maintain copies available for
inspection at the Division's office.
The Commission shall accept and
consider public comment for at least
30 days from the date of posting.
(F) The Commission may hold a public
hearing on a petition and shall hold a
public hearing on a petition if it
receives a written request for a public
hearing within the public comment
period, and the Commission
determines that there is a significant
public interest in holding a public
hearing. The Commission's
determination to hold a public
hearing shall be made no less than 15
days after the close of the public
comment period. The Commission
shall schedule the hearing to be held
within 45 days of the close of the
initial public comment period and
shall accept and consider additional
public comment through the date of
the hearing.
(G) An additional petition for the same
municipal separate storm sewer
system (MS4) or discharge received
during the public comment period
shall be considered as comment on
the original petition. An additional
petition for the same municipal
separate storm sewer system (MS4)
or discharge received after the public
comment period ends and before the
final determination is made shall be
considered incomplete and held
pending a final determination on the
original petition.
(i) If the Commission
determines that the owner or
operator of the municipal
separate storm sewer system
(MS4) or the person who
discharges stormwater is
required to obtain a Phase II
National Pollutant Discharge
Elimination System
(NPDES) permit for
stormwater management,
any petitions for that
municipal separate storm
sewer system (MS4) or
discharge that were held
shall be considered in the
development of the Phase II
National Pollutant Discharge
Elimination System
(NPDES) permit for
stormwater management.
(ii) If the Commission
determines that the owner or
operator of the municipal
separate storm sewer system
(MS4) or the person who
discharges stormwater is not
required to obtain a Phase II
National Pollutant Discharge
Elimination System
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2485
(NPDES) permit for
stormwater management, an
additional petition for the
municipal separate storm
sewer system (MS4) or
discharge must present new
information or demonstrate
that conditions have changed
in order to be considered. If
new information is not
provided, the petition shall
be returned as substantially
incomplete.
(H) The Commission shall evaluate a
petition within 180 days of the date
on which it is determined to be
complete. If the Commission
determines that the owner or operator
of the municipal separate storm sewer
system (MS4) or the person who
discharges stormwater is required to
obtain a Phase II National Pollutant
Discharge Elimination System
(NPDES) permit for stormwater
management, the Commission shall
notify the owner or operator of the
municipal separate storm sewer
system (MS4) or the person who
discharges stormwater within 30 days
of the requirement to obtain the
permit. The owner or operator of the
municipal separate storm sewer
system (MS4) or the person who
discharges stormwater must submit
its application for a Phase II National
Pollutant Discharge Elimination
System (NPDES) permit for
stormwater management within 18
months of the date of notification.
(c) Exemption. A municipality with a population of less than
1,000, including a municipality designated as an urbanized area
under the most recent federal decennial census, is not required to
obtain a Phase II National Pollutant Discharge Elimination
System (NPDES) permit for stormwater management unless the
municipality is shown to be contributing to an impairment of
State waters, as determined under the requirements of 33 U.S.C.
§ 1313(d).
(d) Waiver. The Department may waive the Phase II National
Pollutant Discharge Elimination System (NPDES) permit
requirement pursuant to 40 Code of Federal Regulations §§
122.32(d) or (e).
History Note: Authority G.S. 143-214.1; 143-214.7; 143-
215.1; 143-215.3(a)(1);
Eff. Pending Legislative Review.
15A NCAC 02H .0152 DEVELOPMENT IN
URBANIZING AREAS
(a) Development in Unincorporated Areas of Counties.
(1) Development that cumulatively disturbs one
acre or more of land located in the
unincorporated area of a county shall comply
with the standards set forth in Rule 02H .0154
of this Section beginning 1 July 2007 if the
development is located in:
(A) An area that is designated as an
urbanized area under the most recent
federal decennial census.
(B) The unincorporated area of a county
outside of a municipality designated
as an urbanized area under the most
recent federal decennial census that
extends:
(i) One mile beyond the
corporate limits of a
municipality with a
population of less than
10,000 individuals;
(ii) Two miles beyond the
corporate limits of a
municipality with a
population of 10,000 or
more individuals but less
than 25,000 individuals; and
(iii) Three miles beyond the
corporate limits of a
municipality with a
population of 25,000 or
more individuals.
(C) An area delineated pursuant to Item
(2) of this Paragraph.
(D) A county that contains an area that is
designated as an urbanized area under
the most recent federal decennial
census in which the unduplicated sum
of: (i) the area that is designated as
an urbanized area under the most
recent federal decennial census; (ii)
the area described in Subparagraph
(1)(B) of this Paragraph; (iii) the area
delineated pursuant to Item (2) of this
Paragraph; (iv) the jurisdiction of a
regulated entity designated pursuant
to Rule 02H .0151(a) of this Section;
(v) the area that is regulated by a
Phase II National Pollutant Discharge
Elimination System (NPDES) permit
for stormwater management required
pursuant to Rule 02H .0151(b) of this
Section; and (vi) areas in the county
that are subject to any of the
stormwater management programs
administered by the Division equal or
exceed 75 percent of the total
geographic area of the county. For
purposes of this Paragraph, the
stormwater programs administered by
the Division are:
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25:23 NORTH CAROLINA REGISTER JUNE 1, 2011
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(i) Water Supply Watershed I
(WS-I) – 15A NCAC 02B
.0212;
(ii) Water Supply Watershed II
(WS-II) – 15A NCAC 02B
.0214;
(iii) Water Supply Watershed III
(WS-III) – 15A NCAC 02B
.0215;
(iv) Water Supply Watershed IV
(WS-IV) – 15A NCAC 02B
.0216;
(v) High Quality Waters (HQW)
– 15A NCAC 02H .1006;
(vi) Outstanding Resource
Waters (ORW) – 15A
NCAC 02H .1007;
(vii) The Coastal Stormwater
Program – 15A NCAC 02H
.1005;
(viii) The Neuse River Basin
Nutrient Sensitive Waters
(NSW) Management
Strategy – 15A NCAC 02B
.0235;
(ix) The Tar-Pamlico River
Basin Nutrient Sensitive
(NSW) Management
Strategy – 15A NCAC 02B
.0258;
(x) The Randleman Lake Water
Supply Watershed Nutrient
Management Strategy – 15A
NCAC 02B .0251; and
(xi) Other Environmental
Management Commission
Nutrient Sensitive Waters
(NSW) Classifications –
15A NCAC 02B .0223.
(E) A county that contains an area that is
designated as an urbanized area under
the 1990 or 2000 federal decennial
census and that has an actual
population growth rate that exceeded
the State population growth rate for
the period 1995 through 2004.
(2) Delineation Process. The Commission shall
delineate regulated coverage areas as provided
in Subparagraphs (2)(A) through (F) below:
(A) Schedule. The Commission shall
implement the delineation process in
accordance with the schedule for
review and revision of basinwide
water quality management plans as
provided in G.S. 143-215.8B(c).
(B) Potential candidate coverage areas. A
potential candidate coverage area is
the unincorporated area of a county
that is outside a municipality
designated as a regulated entity
pursuant to Rule 02H .0151(a) of this
Section that:
(i) Extends one mile beyond the
corporate limits of a
municipality with a
population of less than
10,000 individuals;
(ii) Extends two miles beyond
the corporate limits of a
municipality with a
population of 10,000 or
more individuals but less
than 25,000 individuals; and
(iii) Extends three miles beyond
the corporate limits of a
municipality with a
population of 25,000 or
more individuals.
(C) Identification of candidate coverage
areas. The Commission shall identify
an area within a potential candidate
coverage area described in
Subparagraph (2)(B)(ii) of this
Paragraph as a candidate coverage
area if the discharge of stormwater
within or from the unincorporated
area has the potential to adversely
impact water quality. An adverse
impact on water quality includes any
activity that violates water quality
standards, including, but not limited
to, any activity that impairs
designated uses or that has a
significant biological or habitat
impact.
(D) Notice and comment on candidacy.
The Commission shall notify each
public entity that is located in whole
or in part in a candidate coverage
area. After notification of each public
entity, the Commission shall publish
a map of the unincorporated areas
within the river basin that have been
identified as candidates for
delineation as regulated coverage
areas. The Commission shall accept
public comment on the proposed
delineation of a candidate coverage
area as a regulated coverage area for a
period of not less than 30 days.
(E) Delineation of regulated coverage
areas. After review of public
comment, the Commission shall
delineate regulated coverage areas.
The Commission shall delineate a
candidate coverage area as a
regulated coverage area only if the
Commission determines that the
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discharge of stormwater within or
from the candidate coverage area
either:
(i) Adversely impacts water
quality; or
(ii) Results in a significant
contribution of pollutants to
sensitive receiving waters,
taking into account the
effectiveness of other
applicable water quality
protection programs. To
determine the effectiveness
of other applicable water
quality protection programs,
the Commission shall
consider the water quality of
the receiving waters and
whether the waters support
the uses set out in
Paragraphs (c), (d), and (e)
of 15A NCAC 2B .0101
(Procedures for Assignment
of Water Quality Standards
– General Procedures) and
the specific classification of
the waters set out in 15A
NCAC 02B .0300, et seq.
(Assignment of Stream
Classifications).
(F) Notice of delineation. The
Commission shall provide written
notice to each public entity that is
located in whole or in part in a
candidate coverage area of its
delineation determination. The notice
shall state the basis for the
determination.
(3) Except as provided in this Paragraph and 15A
NCAC 02H .1016(d), the Commission shall
administer and enforce the standards for
development in the regulated coverage areas.
To the extent authorized by law, where the
development is located in a municipal
planning jurisdiction, the municipality shall
administer and enforce the standards. A public
entity may request that the Commission
delegate administration and enforcement of the
stormwater management program to the public
entity as provided in 15A NCAC 02H
.1016(d).
(b) Development in Non-Phase II Incorporated Areas in Certain
Counties. Development that cumulatively disturbs one acre or
more of land located in the incorporated areas of a county
described in Subparagraphs (1)(D) and (E) of Paragraph (a), that
are not designated as an urbanized area under the most recent
federal decennial census, shall comply with the standards set
forth in Rule 02H .0151(a) of this Section of this act beginning 1
July 2007. The Commission shall administer and enforce the
standards for development unless the public entity requests that
the Commission delegate administration and enforcement of the
stormwater management program to the public entity as
provided in 15A NCAC 02H .1016(d).
History Note: Authority G.S. 143-214.1; 143-214.7; 143-
215.1; 143-215.3(a)(1);
Eff. Pending Legislative Review.
15A NCAC 02H .0153 PROGRAM IMPLEMENTATION
(a) Permit Standards. To obtain a Phase II National Pollutant
Discharge Elimination System (NPDES) permit for stormwater
management, an applicant shall, to the extent authorized by law,
develop, implement, and enforce a stormwater management plan
approved by the Commission that satisfies the six minimum
control measures required by 40 Code of Federal Regulations §
122.34(b). The evaluation of the post-construction stormwater
management measures required by 40 Code of Federal
Regulations § 122.34(b)(5) shall be conducted as provided in
Rule .0154(a) of this Section. Regulated entities may propose
using any existing State or local program that relates to the
minimum measures to meet, either in whole or in part, the
requirements of the minimum measures.
(b) Implementation Schedule. The requirements of this act shall
be implemented as follows:
(1) A regulated entity must apply within 18
months of notification by the Department that
the regulated entity is subject to regulation
pursuant to Rules .0151(a) and (b), and .0152
of this Section.
(2) Public education and outreach minimum
measures shall be implemented no later than
12 months from date of permit issuance.
(3) A regulated entity must implement its post-construction
program no later than 24 months
from the date the permit is issued.
(4) The Department shall include permit
conditions that establish schedules for
implementation of each minimum measure of
the regulated entity's stormwater management
program based on the submitted application so
that the regulated entity fully implements its
permitted program within five years from
permit issuance.
(c) Federal and State Projects. The Commission shall have
jurisdiction, to the exclusion of local governments, to issue a
National Pollutant Discharge Elimination System (NPDES)
permit for stormwater management to a federal or State agency
that applies to all or part of the activities of the agency or that
applies to the particular project. If a federal or State agency does
not hold a Phase I or Phase II National Pollutant Discharge
Elimination System (NPDES) permit for stormwater
management that applies to the particular project, then the
project is subject to the stormwater management requirements of
this Rule as implemented by the Commission or by a local
government. The provisions of G.S. 153A-347 and G.S. 160A-
392 apply to the implementation of this Rule.
(d) General Permit. The Commission shall develop and issue a
Phase II National Pollutant Discharge Elimination System
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(NPDES) general permit for stormwater management. The
general permit requirements for post-construction stormwater
management measures required by 40 Code of Federal
Regulations § 122.34(b)(5) shall require a permittee to meet the
standards set out in Rule .0154(a) of this Section but shall not
impose any requirement on the permittee that exceeds the
standards set out in Rule .0154(a) of this Section. After the
Commission has issued a Phase II National Pollutant Discharge
Elimination System (NPDES) general permit for stormwater
management, a public entity that has applied for a permit may
submit a notice of intent to be covered under the general permit
to the Commission. The Commission shall treat an application
for a permit as an application for an individual permit unless the
applicant submits a notice of intent to be covered under a general
permit under this Paragraph.
(e) The exclusions from the requirement to obtain a Phase II
National Pollutant Discharge Elimination System (NPDES)
permit set out in 40 Code of Federal Regulations § 122.3,
including the exclusions for certain nonpoint source agricultural
and silvicultural activities, apply to the provisions of this Rule.
History Note: Authority G.S. 143-214.1; 143-214.7; 143-
215.1; 143-215.3(a)(1);
Eff. Pending Legislative Review.
15A NCAC 02H .0154 POST-CONSTRUCTION
PRACTICIES
(a) Requirements for Post-Construction Practices.
(1) Permittees, delegated programs, and regulated
entities must require stormwater controls for a
project that disturbs one acre or more of land,
including a project that disturbs less than one
acre of land that is part of a larger common
plan of development or sale. Whether an
activity or project that disturbs less than one
acre of land is part of a larger common plan of
development shall be determined in a manner
consistent with the memorandum referenced as
"Guidance Interpreting Phase 2 Stormwater
Requirements" from the Director of the DWQ
of the DENR to Interested Parties dated 24
July 2006. The stormwater controls shall be
appropriate to the project's level of density as
follows:
(A) Low Density Option. A project that
is located within any of the coastal
counties is a low density project if it
meets the low density requirements of
15A NCAC 02H .1005. A project
that is not located within any of the
coastal counties is a low density
project if it contains no more than 24
percent built-upon area or no more
than two dwelling units per acre.
Low density projects must use
vegetated conveyances to the
maximum extent practicable to
transport stormwater runoff from the
project. On-site stormwater treatment
devices such as infiltration areas,
bioretention areas, and level spreaders
may also be used as added controls
for stormwater runoff. A project with
an overall density at or below the low
density thresholds, but containing
areas with a density greater than the
overall project density, may be
considered low density as long as the
project meets or exceeds the
requirements of this Subparagraph
(1)(A) and locates the higher density
development in upland areas and
away from surface waters and
drainageways to the maximum extent
practicable.
(B) High Density Option. A project that
is located within any of the coastal
counties is a high density project if it
meets the high density requirements
of 15A NCAC 2H .1005. A project
that is not located within any of the
coastal counties is a high density
project if it contains more than 24
percent built-upon area or more than
two dwelling units per acre. High
density projects must use structural
stormwater management systems that
will control and treat runoff from the
first one inch of rain. The structural
stormwater management system must
also meet the following design
standards:
(i) Draw down the treatment
volume no faster than 48
hours, but no slower than
120 hours.
(ii) Discharge the storage
volume at a rate equal to or
less than the predevelopment
discharge rate for the one-year,
24-hour storm.
(iii) Remove an 85 percent
average annual amount of
Total Suspended Solids.
(iv) Meet the General
Engineering Design Criteria
set out in 15A NCAC 02H
.1008(c).
(v) Wet detention ponds
designed in accordance with
the requirements of Item (6)
of this Paragraph may be
used for projects draining to
Class SA waters.
(2) Permittees, delegated programs, and regulated
entities must require built-upon areas to be
located at least 30 feet landward of all
perennial and intermittent surface waters. For
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purposes of Paragraph (a), a surface water
shall be present if the feature is shown on
either the most recent version of the soil
survey map prepared by the Natural Resources
Conservation Service of the United States
Department of Agriculture or the most recent
version of the 1:24,000 scale (7.5 minute)
quadrangle topographic maps prepared by the
United States Geologic Survey (USGS).
Relief from this requirement may be allowed
when surface waters are not present in
accordance with the provisions of 15A NCAC
02B .0233(3)(a). In addition, an exception to
this requirement may be pursued in accordance
with Paragraph (c) of this Rule.
(3) Permittees, delegated programs, and regulated
entities must implement or require a fecal
coliform reduction program that controls, to
the maximum extent practicable, the sources
of fecal coliform. At a minimum, the program
shall include the development and
implementation of an oversight program to
ensure proper operation and maintenance of
on-site wastewater treatment systems for
domestic wastewater. For municipalities, this
program may be coordinated with local county
health departments.
(4) Permittees, delegated programs, and regulated
entities must impose or require recorded
restrictions and protective covenants to be
recorded on the property in the Office of the
Register of Deeds in the county where the
property is located prior to the issuance of a
certificate of occupancy in order to ensure that
development activities will maintain the
project consistent with approved plans.
(5) Permittees, delegated programs, and regulated
entities must implement or require an
operation and maintenance plan that ensures
the adequate long-term operation of the
structural best management practices (BMP)
required by the program. The operation and
maintenance plan must require the owner of
each structural BMP to submit a maintenance
inspection report on each structural BMP
annually to the local program.
(6) For areas draining to Class SA waters,
permittees, delegated programs, and regulated
entities must:
(A) Use BMPs that result in the highest
degree of fecal coliform die-off and
control to the maximum extent
practicable sources of fecal coliform
while still incorporating the
stormwater controls required by the
project's density level.
(B) Implement a program to control the
sources of fecal coliform to the
maximum extent practicable,
including a pet waste management
component, which may be achieved
by revising an existing litter
ordinance, and an on-site domestic
wastewater treatment systems
component to ensure proper operation
and maintenance of such systems,
which may be coordinated with local
county health departments.
(C) Meet the requirements of 15A NCAC
2H .1005(a)(2).
(7) For areas draining to Trout Waters, permittees,
delegated programs, and regulated entities
must:
(A) Use BMPs that avoid a sustained
increase in the receiving water
temperature, while still incorporating
the stormwater controls required for
the project's density level.
(B) Allow on-site stormwater treatment
devices such as infiltration areas,
bioretention areas, and level spreaders
as added controls.
(8) For areas draining to Nutrient Sensitive
Waters, permittees, delegated programs, and
regulated entities must:
(A) Use BMPs that reduce nutrient
loading, while still incorporating the
stormwater controls required for the
project's density level. In areas where
the Department has approved a
Nutrient Sensitive Water Urban
Stormwater Management Program,
the provisions of that program fulfill
the nutrient loading reduction
requirement. Nutrient Sensitive
Water Urban Stormwater
Management Program requirements
are found in 15A NCAC 02B .0200.
(B) Implement a nutrient application
management program for both
inorganic fertilizer and organic
nutrients to reduce nutrients entering
waters of the State.
(9) For post-construction requirements, a program
will be deemed compliant for the areas where
it is implementing any of the following
programs:
(A) Water Supply Watershed I (WS-I) –
15A NCAC 02B .0212;
(B) Water Supply Watershed II (WS-II) –
15A NCAC 02B .0214;
(C) Water Supply Watershed III (WS-III)
– 15A NCAC 02B .0215;
(D) Water Supply Watershed IV (WS-IV)
– 15A NCAC 02B .0216;
(E) Freshwater High Quality Waters
(HQW) – 15A NCAC 02H .1006;
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(F) Freshwater Outstanding Resource
Waters (ORW) – 15A NCAC 02H
.1007;
(G) The Neuse River Basin Nutrient
Sensitive Waters (NSW)
Management Strategy – 15A NCAC
02B .0235;
(H) The Tar-Pamlico River Basin
Nutrient Sensitive (NSW)
Management Strategy – 15A NCAC
02B .0258; or
(I) The Randleman Lake Water Supply
Watershed Nutrient Management
Strategy – 15A NCAC 02B .0251.
(10) In order to fulfill the post-construction
minimum measure program requirement, a
permittee, delegated program, or regulated
entity may use the Department's model
ordinance, design its own post-construction
practices based on the Department's guidance
on scientific and engineering standards for
BMPs, incorporate the post-construction
model practices described in this act, or
develop its own comprehensive watershed
plan that is determined by the Department to
meet the post-construction stormwater
management measure required by 40 Code of
Federal Regulations § 122.34(b)(5).
(11) Nothing in this Paragraph shall limit, expand,
or alter the requirement that a discharge fully
comply with all applicable State or federal
water quality standards.
(b) Exclusions from Post-Construction Practices. The post-construction
practices required by Paragraph (a) of this Rule
shall not apply to any of the following:
(1) Development in an area where the
requirements of Paragraph (a) of this act are
applicable that is conducted pursuant to one of
the following authorizations, provided that the
authorization was obtained prior to the
effective date of the post-construction
stormwater control requirements in the area
and the authorization is valid, unexpired,
unrevoked, and not otherwise terminated:
(A) A building permit pursuant to G.S.
153A-357 or G.S. 160A-417;
(B) A site-specific development plan as
defined by G.S. 153A-344.1(b)(5)
and G.S. 160A-385.1(b)(5);
(C) A phased development plan approved
pursuant to G.S. 153A-344.1 for a
project located in the unincorporated
area of a county that is subject to the
requirements of Paragraph (a), if the
Commission is responsible for
implementation of the requirements
of Paragraph (a) that shows:
(i) For the initial or first phase
of development, the type and
intensity of use for a specific
parcel or parcels, including
at a minimum, the
boundaries of the project and
a subdivision plan that has
been approved pursuant to
G.S. 153A-330 through G.S.
153A-335.
(ii) For any subsequent phase of
development, sufficient
detail so that implementation
of the requirements of
Paragraph (a) to that phase
of development would
require a material change in
that phase of the plan.
(D) A vested right to the development
under G.S. 153A-344(b), 153A-
344.1, 160A-385(b), or 160A-385.1
issued by a local government that
implements Paragraph (a); or
(E) A vested right to the development
pursuant to common law.
(2) Redevelopment as defined in Rule .0150 of
this Section.
(c) Exceptions. The Department or an appropriate local
authority, pursuant to Article 18 of G.S. 153A or Article 19 of
G.S. 160A, may grant exceptions from the 30-foot landward
location of built-upon area requirement as well as the deed
restrictions and protective covenants requirement as follows:
(1) An exception may be granted if the application
meets all of the following criteria:
(A) Unnecessary hardships would result
from strict application of the act;
(B) The hardships result from conditions
that are peculiar to the property, such
as the location, size, or topography of
the property;
(C) The hardships did not result from
actions taken by the petitioner; and
(D) The requested exception is consistent
with the spirit, purpose, and intent of
this act; will protect water quality;
will secure public safety and welfare;
and will preserve substantial justice.
Merely proving that the exception
would permit a greater profit from the
property shall not be considered
adequate justification for an
exception.
(2) Notwithstanding Item (1) of this Paragraph,
exceptions shall be granted in any of the
following instances:
(A) When there is a lack of practical
alternatives for a road crossing,
railroad crossing, bridge, airport
facility, or utility crossing as long as
it is located, designed, constructed,
and maintained to minimize
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disturbance, provide maximum
nutrient removal, protect against
erosion and sedimentation, have the
least adverse effects on aquatic life
and habitat, and protect water quality
to the maximum extent practicable
through the use of BMPs.
(B) When there is a lack of practical
alternatives for a stormwater
management facility; a stormwater
management pond; or a utility,
including, but not limited to, water,
sewer, or gas construction and
maintenance corridor, as long as it is
located 15 feet landward of all
perennial and intermittent surface
waters and as long as it is located,
designed, constructed, and
maintained to minimize disturbance,
provide maximum nutrient removal,
protect against erosion and
sedimentation, have the least adverse
effects on aquatic life and habitat, and
protect water quality to the maximum
extent practicable through the use of
BMPs.
(C) A lack of practical alternatives may
be shown by demonstrating that,
considering the potential for a
reduction in size, configuration, or
density of the proposed activity and
all alternative designs, the basic
project purpose cannot be practically
accomplished in a manner which
would avoid or result in less adverse
impact to surface waters.
(3) Reasonable and appropriate conditions and
safeguards may be imposed upon any
exception granted.
(4) Local authorities must document the exception
procedure and submit an annual report to the
Department on all exception proceedings.
(5) Appeals of the Department's exception
decisions must be filed with the Office of
Administrative Hearings, under G.S. 150B-23.
Appeals of a local authority's exception
decisions must be made to the appropriate
Board of Adjustment or other appropriate local
governing body, under G.S. 160A-388 or G.S.
153A-345.
History Note: Authority G.S. 143-214.1; 143-214.7; 143-
215.1; 143-215.3(a)(1);
Eff. Pending Legislative Review.
15A NCAC 02H .1002 DEFINITIONS
The definition of any word or phrase in this Section shall be the
same as given in Article 21, Chapter 143 of the General Statutes
of North Carolina, as amended. Other words and phrases used in
this Section are defined as follows:
(1) "Built-upon Area" means that portion of a
development project that is covered by
impervious or partially impervious surface
including, but not limited to, buildings;
pavement and gravel areas such as roads,
parking lots, and paths; and recreation
facilities such as tennis courts "Built upon
area" does not include a wooden slatted deck,
the water area of a swimming pool, or
pervious or partially pervious paving material
to the extent that the paving material absorbs
water or allows water to infiltrate through the
paving material.
(2) "CAMA Major Development Permits" mean
those permits or revised permits required by
the Coastal Resources Commission according
to 15A NCAC 7J Sections .0100 and .0200.
(3) "Certificate of Stormwater Compliance"
means the approval for activities that meet the
requirements for coverage under a stormwater
general permit for development activities that
are regulated by this Section.
(4) "Coastal Counties" include Beaufort, Bertie,
Brunswick, Camden, Carteret, Chowan,
Craven, Currituck, Dare, Gates, Hertford,
Hyde, New Hanover, Onslow, Pamlico,
Pasquotank, Pender, Perquimans, Tyrrell, and
Washington.
(5) "Curb Outlet System" means curb and gutter
installed in a development which meets low
density criteria [Rule .1003(d)(1) of this
Section] with breaks in the curb or other
outlets used to convey stormwater runoff to
grassed swales or vegetated or natural areas
and designed in accordance with Rule .1008(g)
of this Section.
(6) "Development" means any land disturbing
activity that increases the amount of built-upon
area or that otherwise decreases the infiltration
of precipitation into the soil.
(7) "Drainage Area or Watershed" means the
entire area contributing surface runoff to a
single point.
(8) "Forebay" means a device located at the head
of a wet detention pond to capture incoming
sediment before it reaches the main portion of
the pond. The forebay is typically an
excavated settling basin or a section separated
by a low weir.
(9) "General Permit" means a "permit" issued
under G.S. 143-215.1(b)(3) and (4) authorizing
a category of similar activities or discharges.
(10) "Infiltration Systems" mean stormwater
control systems designed to allow runoff to
pass or move (infiltrate/exfiltrate) into the soil.
(11) "Notice of Intent" means a written notification
to the Division that an activity or discharge is
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intended to be covered by a general permit and
takes the place of "application" used with
individual permits.
(12) "Off-site Stormwater Systems" mean
stormwater management systems that are
located outside the boundaries of the specific
project in question, but designed to control
stormwater drainage from that project and
other potential development sites. These
systems shall designate responsible parties for
operation and maintenance and may be owned
and operated as a duly licensed utility or by a
local government.
(13) "On-site Stormwater Systems" mean the
systems necessary to control stormwater
within an individual development project and
located within the project boundaries.
(14) "Redevelopment" means any land disturbing
activity that does not result in a net increase in
built-upon area and that provides greater or
equal stormwater control than the previous
development (stormwater controls shall not be
allowed where otherwise prohibited).
(15) "Seasonal High Water Table" means the
highest level that groundwater, at atmospheric
pressure, reaches in the soil in most years.
The seasonal high water table is usually
detected by the mottling of the soil that results
from mineral leaching.
(16) "Sedimentation/Erosion Control Plan" means
any plan, amended plan or revision to an
approved plan submitted to the Division of
Land Resources or delegated authority in
accordance with G.S. 113A-57.
(17) "Stormwater" is defined in G.S. 143, Article
21.
(18) "Stormwater Collection System" means any
conduit, pipe, channel, curb or gutter for the
primary purpose of transporting (not treating)
runoff. A stormwater collection system does
not include vegetated swales, swales stabilized
with armoring or alternative methods where
natural topography or other physical
constraints prevents the use of vegetated
swales (subject to case-by-case review), curb
outlet systems, or pipes used to carry drainage
underneath built-upon surfaces that are
associated with development controlled by the
provisions of Rule .1003(d)(1) in this Section.
(19) "10 Year Storm" means the surface runoff
resulting from a rainfall of an intensity
expected to be equaled or exceeded, on the
average, once in 10 years, and of a duration
which will produce the maximum peak rate of
runoff, for the watershed of interest under
average antecedent wetness conditions.
(20) "Water Dependent Structures" means a
structure for which the use requires access or
proximity to or siting within surface waters to
fulfill its basic purpose, such as boat ramps,
boat houses, docks, and bulkheads. Ancillary
facilities such as restaurants, outlets for boat
supplies, parking lots and boat storage areas
are not water dependent uses.
(21) "Wet Detention Pond" means a structure that
provides for the storage and control of runoff
and includes a designed and maintained
permanent pool volume.
(22) "Vegetative Buffer" means an area of natural
or established vegetation directly adjacent to
surface waters through which stormwater
runoff flows in a diffuse manner to protect
surface waters from degradation due to
development activities. The width of the
buffer is measured horizontally from the
normal pool elevation of impounded
structures, from the bank of each side of
streams or rivers, and from the mean high
water line of tidal waters, perpendicular to the
shoreline.
(23) "Vegetative Filter" means an area of natural or
planted vegetation through which stormwater
runoff flows in a diffuse manner so that runoff
does not become channelized and which
provides for control of stormwater runoff
through infiltration of runoff and filtering of
pollutants. The defined length of the filter
shall be provided for in the direction of
stormwater flow.
(24) "One-year, 24-hour storm" means a rainfall of
an intensity expected to be equaled or
exceeded, on average, once in 12 months and
with a duration of 24 hours.
(25) "BMP" means Best Management Practice.
(26) "Permeable pavement" means paving material
that absorbs water or allows water to infiltrate
through the paving material. Permeable
pavement materials include porous concrete,
permeable interlocking concrete pavers,
concrete grid pavers, porous asphalt, and any
other material with similar characteristics.
Compacted gravel shall not be considered
permeable pavement.
(27) "Residential development activities" has the
same meaning as in 15A NCAC 02B
.0202(54).
(28) "Vegetative conveyance" means a permanent,
designed waterway lined with vegetation that
is used to convey stormwater runoff at a non-erosive
velocity within or away from a
developed area.
History Note: Authority G.S. 143-213; 143-214.1; 143-
214.7; 143-215.3(a)(1);
Eff. January 1, 1988;
Amended Eff. December 1, 1995; September 1, 1995;
Amended Eff. Pending Legislative Review.
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15A NCAC 02H .1005 STORMWATER
REQUIREMENTS: COASTAL COUNTIES
(a) Requirements for Certain Nonresidential and Residential
Development in the Coastal Counties. All nonresidential
development activities that occur within the Coastal Counties
that will add more than 10,000 square feet of built upon area or
that require a Sedimentation and Erosion Control Plan, pursuant
to G.S. 113A-57 or a CAMA Major Development Permit,
pursuant to G.S. 113A-118 and all residential development
activities within the Coastal Counties that require a
Sedimentation and Erosion Control Plan, pursuant to G.S. 113A-
57 or a CAMA Major Development Permit, pursuant to G.S.
113A-118 shall manage stormwater runoff as provided in Items
(1), (2), and (3) below. A development activity or project
requires a Sedimentation and Erosion Control Plan if the activity
or project disturbs one acre or more of land, including an activity
or project that disturbs less than one acre of land that is part of a
larger common plan of development. Whether an activity or
project that disturbs less than one acre of land is part of a larger
common plan of development shall be determined in a manner
consistent with the memorandum referenced as "Guidance
Interpreting Phase 2 Stormwater Requirements" from the
Director of the DWQ of the DENR to Interested Parties dated 24
July 2006.
(1) Development Near Outstanding Resource
Waters (ORW). Development activities within
the Coastal Counties and located within 575
feet of the mean high waterline of areas
designated by the Commission as Outstanding
Resource Waters (ORW) shall meet the
requirements of Rule .1007 of the Section and
shall be permitted as follows:
(A) Low Density Option. Development
shall be permitted pursuant to Rule
.1003(d)(1) of this Section if the
development meets all of the
following requirements:
(i) The development has a built
upon area of 12 percent or
less. A development project
with an overall density at or
below the low density
threshold, but containing
areas with a density greater
than the overall project
density, shall be considered
low density as long as the
project meets or exceeds the
requirements for low density
development and locates the
higher density development
in upland areas and away
from surface waters and
drainageways to the
maximum extent practicable.
(ii) Stormwater runoff from the
development is transported
primarily by vegetated
conveyances. The
conveyance system shall not
include a stormwater
collection system as defined
in Rule .1002 of this Section.
(iii) The development contains a
vegetative buffer in
accordance with Paragraph
(e) of this Rule.
(B) High Density Option. Development
shall be permitted pursuant to Rule
.1003(d)(2) of this Section if the
development meets all of the
following requirements:
(i) The development has a built
upon area of greater than 12
percent.
(ii) The development has no
direct outlet channels or
pipes to Class SA waters
unless permitted in
accordance with 15A NCAC
02H .0126.
(iii) The development utilizes
control systems that are any
combination of infiltration
systems, bioretention
systems, constructed
stormwater wetlands, sand
filters, rain barrels, cisterns,
rain gardens or alternative
low impact development
(LID) stormwater
management systems
designed in accordance with
Rule .1008 of this Section to
control and treat the greater
of, runoff from all surfaces
generated by one and one-half
inches of rainfall, or the
difference in the stormwater
runoff from all surfaces from
the predevelopment and
postdevelopment conditions
for a one-year, 24-hour
storm. Wet detention ponds
may be used as a stormwater
control system to meet the
requirements of this
Subparagraph (1)(B)(iii),
provided that the stormwater
control system fully
complies with the
requirements of
Subparagraph (1)(B). If a
wet detention pond is used
within one-half mile of Class
SA waters, installation of a
stormwater best
management practice in
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series with the wet detention
pond shall be required to
treat the discharge from the
wet detention pond.
Alternatives as described in
Rule .1008(h) of this Section
may also be approved if they
meet the requirements of
Subparagraph (1)(B).
(iv) Stormwater runoff from the
development that is in
excess of the design volume
must flow overland through
a vegetative filter designed
in accordance with Rule
.1008 of this Section with a
minimum length of 50 feet
measured from mean high
water of Class SA waters.
(v) The development contains a
vegetative buffer in
accordance with Paragraph
(e) of this Rule.
(C) Stormwater Discharges Prohibited.
All development activities, including
both low and high density projects,
shall prohibit new points of
stormwater discharge to Class SA
waters or an increase in the volume of
stormwater flow through
conveyances or increase in capacity
of conveyances of existing
stormwater conveyance systems that
drain to Class SA waters. Any
modification or redesign of a
stormwater conveyance system
within the contributing drainage basin
must not increase the net amount or
rate of stormwater discharge through
existing outfalls to Class SA waters.
The following shall not be considered
a direct point of stormwater
discharge:
(i) Infiltration of the stormwater
runoff from the design storm
as described in
Subparagraph (1)(B)(iii).
(ii) Diffuse flow of stormwater
at a non-erosive velocity to a
vegetated buffer or other
natural area, that is capable
of providing effective
infiltration of the runoff
from the design storm as
described in Subparagraph
(1)(B)(iii). Notwithstanding
the other requirements of
this Rule, the infiltration
mandated in this
Subparagraph (1)(C)(ii) does
not require a minimum
separation from the seasonal
high-water table.
(iii) The discharge from a wet
detention pond that is treated
by a secondary stormwater
best management practice,
provided that both the wet
detention pond and the
secondary stormwater best
management practice meet
the requirements of
Subparagraph (1)(C).
(D) Limitation on the Density of
Development. Development shall be
limited to a built upon area of 25
percent or less.
(2) Development Near Class SA Waters.
Development activities within one-half mile of
and draining to those waters classified by the
Commission as Class SA waters or within one-half
mile of waters classified by the
Commission as Class SA waters and draining
to unnamed freshwater tributaries to Class SA
waters shall meet the requirements of
Subparagraphs (1)(A), (B), and (C). The
extent of Class SA waters is limited to those
waters that are determined to be at least an
intermittent stream based on a site stream
determination made in accordance with the
procedures that are delineated in the Division's
"Identification Methods for the Origin of
Intermittent and Perennial Streams" prepared
pursuant to Session Law 2001-404.
(3) Other Coastal Development. Development
activities within the Coastal Counties except
those areas described in Items (1) and (2) of
this Paragraph shall meet all of the following
requirements:
(A) Low-Density Option. Development
shall be permitted pursuant to Rule
.1003(d)(1) of this Section if the
development meets all of the
following requirements:
(i) The development has a built
upon area of 24 percent or
less. A development project
with an overall density at or
below the low-density
threshold, but containing
areas with a density greater
than the overall project
density, shall be considered
low density as long as the
project meets or exceeds the
requirements for low-density
development and locates the
higher density in upland
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2495
areas and away from surface
waters and drainageways to
the maximum extent
practicable.
(ii) Stormwater runoff from the
development is transported
primarily by vegetated
conveyances. The
conveyance system shall not
include a stormwater
collection system as defined
in Rule .1002 of this Section.
(iii) The development contains a
vegetative buffer in
accordance with Paragraph
(e) of this Rule.
(B) High-Density Option. Higher density
developments shall be permitted
pursuant to Rule .1003(d)(2) of this
Section if the development meets all
of the following requirements:
(i) The development has a built
upon area of greater than 24
percent.
(ii) The development uses
control systems that are any
combination of infiltration
systems, wet detention
ponds, bioretention systems,
constructed stormwater
wetlands, sand filters, rain
barrels, cisterns, rain gardens
or alternative stormwater
management systems
designed in accordance with
Rule .1008 of this Section.
(iii) Control systems must be
designed to store, control,
and treat the stormwater
runoff from all surfaces
generated by one and one-half
inch of rainfall.
(iv) The development contains a
vegetative buffer in
accordance with Paragraph
(e) of this Rule.
(b) Requirements for Limited Residential Development in
Coastal Counties. For residential development activities within
the 20 Coastal Counties that are located within one-half mile and
draining to Class SA waters, that have a built upon area greater
than 12 percent, that will add more than 10,000 square feet of
built upon area, and that does not require a Sedimentation and
Erosion Control Plan, pursuant to G.S. 113A-57 or a CAMA
Major Development Permit, pursuant to G.S. 113A-118, a one-time,
nonrenewable stormwater management permit shall be
obtained. The permit shall require recorded restrictions or
protective covenants to be recorded on the property in the Office
of the Register of Deeds in the county where the property is
located prior to the issuance of a certificate of occupancy in
order to ensure that the plans and specifications approved in the
permit are maintained. Under this permit, stormwater runoff
shall be managed using any one or combination of the following
practices:
(1) Install rain cisterns or rain barrels designed to
collect all rooftop runoff from the first one and
one-half inches of rain. Rain barrels and
cisterns shall be installed in such a manner as
to facilitate the reuse of the collected rain
water on site and shall be installed in such a
manner that any overflow from these devices
is directed to a vegetated area in a diffuse
flow. Construct all uncovered driveways,
uncovered parking areas, uncovered
walkways, and uncovered patios out of
permeable pavement or other pervious
materials.
(2) Direct rooftop runoff from the first one and
one-half inches of rain to an appropriately
sized and designed rain garden. Construct all
uncovered driveways, uncovered parking
areas, uncovered walkways, and uncovered
patios out of permeable pavement or other
pervious materials.
(3) Install any other stormwater best management
practice that meets the requirements of Rule
.1008 of this Section to control and treat the
stormwater runoff from all built upon areas of
the site from the first one and one-half inches
of rain.
(c) Requirements for Structural Stormwater Controls. Structural
stormwater controls required under this Rule shall meet all of the
following requirements:
(1) Remove an 85 percent average annual amount
of Total Suspended Solids.
(2) For detention ponds, draw down the treatment
volume no faster than 48 hours, but no slower
than 120 hours.
(3) Discharge the storage volume at a rate equal to
or less than the predevelopment discharge rate
for the one-year, 24-hour storm.
(4) Meet the General Engineering Design Criteria
set forth in Rule .1008(c) of this Section.
(5) For structural stormwater controls that require
separation from the seasonal high water table,
a minimum separation of two feet is required.
Where a separation of two feet from the
seasonal high water table is not practicable, the
Division may grant relief from the separation
requirement pursuant to the Alternative Design
Criteria set out in Rule .1008(h) of this
Section. No minimum separation from the
seasonal high water table is required for a
secondary stormwater best management
practice that is used in a series with another
stormwater best management practice.
(d) Wetlands. Developments regulated by this Rule that have
wetlands inside of, or adjacent to, the development must meet
the following requirements:
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2496
(1) Areas defined as Coastal Wetlands under 15A
NCAC 07H .0205, as measured landward from
the normal high waterline, shall not be
included in the overall project area to calculate
impervious surface density. Wetlands that are
not regulated as coastal wetlands pursuant to
15A NCAC 07H .0205 and that are located
landward of the normal high waterline may be
included in the overall project area to calculate
impervious surface density.
(2) Stormwater runoff from built upon areas that
is directed to flow through any wetlands shall
flow into and through these wetlands at a non-erosive
velocity.
(e) Vegetative Buffer. Developments permitted under
Paragraph (a) shall contain a 50 foot wide vegetative buffer, as
defined in Rule .1002(22) of this Section, for new development
activities and a 30 foot wide vegetative buffer for redevelopment
activities. The vegetative buffer may be cleared or graded, but
must be planted with and maintained in grass or any other
vegetative or plant material. The Division may, on a case-by-case
basis, grant a minor variance from the vegetative buffer
requirements of this section pursuant to the procedures set out in
15A NCAC 02B .0233(9)(b). Vegetative buffers and filters
required by this section and any other buffers or filters required
by State water quality or coastal management rules or local
government requirements may be met concurrently and may
contain, in whole or in part, coastal, isolated, or 404
jurisdictional wetlands that are located landward of the normal
waterline.
(f) Exemptions From Vegetative Buffer Requirements. The
following activities are exempt from the vegetative buffer
requirements of Paragraph (e) of this Rule:
(1) Development in urban waterfronts that meets
the requirements of 15A NCAC 07H .0209(g),
(2) Development in a new urban waterfront area
that meets the requirements of S.L. 2004-117,
(3) Those activities listed in 15A NCAC 07H
.0209(d)(10)(A) through 15A NCAC 07H
.0209(d)(10)(H),
(4) Development of upland marinas that have
received or are required to secure a CAMA
Major Development Permit.
(g) Compliance with Other Rules. In addition to the
requirements specified in this section, activities regulated under
this section must also comply with any requirements of any
other applicable law or rule.
(h) Exclusions. The amended requirements of this Rule shall
not apply to any of the following:
(1) Activities of the North Carolina Department of
Transportation that are regulated in accordance
with the provisions of the Department's
National Pollutant Discharge Elimination
System (NPDES) Stormwater Permit.
(2) Development activities that are conducted
pursuant to and consistent with one of the
following authorizations, or any timely
renewal thereof, shall be regulated by those
provisions and requirements of this Rule that
were effective at the time of the original
issuance of the following authorizations:
(A) State Stormwater Permit issued under
the provisions of this Rule.
(B) Stormwater Certification issued
pursuant to Rule .1000 of this Section
prior to 1 December 1995.
(C) A CAMA Major Development
Permit.
(D) 401 Certification that contains an
approved Stormwater Management
Plan.
(E) A building permit pursuant to G.S.
153A-357 or G.S. 160A-417.
(F) A site-specific development plan as
defined by G.S. 153A-344.1(b)(5)
and G.S. 160A-385.1(b)(5).
(G) A phased development plan approved
pursuant to G.S. 153A-344.1 or G.S.
160A-385.1 that shows:
(i) For the initial or first phase
of development, the type and
intensity of use for a specific
parcel or parcels, including
at a minimum, the
boundaries of the project and
a subdivision plan that has
been approved pursuant to
G.S. 153A-330 through G.S.
153A-335 or G.S. 160A-371
through G.S. 160A-376.
(ii) For any subsequent phase of
development, sufficient
detail so that implementation
of the requirements of this
section to that phase of
development would require a
material change in that phase
of the plan.
(iii) A vested right to the
development pursuant to
common law.
(H) Redevelopment activities that result
in no net increase in built upon area
and provide stormwater control equal
to the previous development.
(I) Development activities for which a
complete Stormwater Permit
Application has been accepted by the
Division prior to October 1, 2008,
shall be regulated by the provisions
and requirements of this Rule that
were effective at the time that this
application was accepted as complete
by the Division. For purposes of this
Rule, a Stormwater Permit
Application is deemed accepted as
complete by the Division when the
application is assigned a permit
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number in the Division's Basinwide
Information Management System.
(J) Development activities for which
only a minor modification of a State
Stormwater Permit is required shall
be regulated by the provisions and
requirements of this Rule that were
effective at the time of the original
issuance of the State Stormwater
Permit. For purposes of this Rule, a
minor modification of a State
Stormwater Permit is defined as a
modification that does not increase
the net area of built upon area within
the project site or does not increase
the overall size of the stormwater
controls that have been previously
approved for that development
activity.
(K) Municipalities designated as a
National Pollutant Discharge
Elimination System (NPDES) Phase
2 municipality located within the 20
Coastal Counties until such time as
the NPDES Phase 2 Stormwater
Permit expires and is subject to
renewal. Upon renewal of the
NPDES Phase 2 Stormwater Permits
for municipalities located within the
20 Coastal Counties, the Department
shall review the permits to determine
whether the permits should be
amended to include the provisions of
this Rule.
History Note: Authority G.S. 143-214.1; 143-214.7; 143-
215.1; 143-215.3(a);
Eff. September 1, 1995;
This Rule is superseded by S.L. 2008-211 Eff. October 1, 2008;
Amended Eff. Pending Legislative Review.
15A NCAC 02H .1014 STORMWATER MANAGEMENT
FOR URBANIZING AREAS
(a) Stormwater discharges subject to National Pollutant
Discharge Elimination System (NPDES) permitting are
addressed in Section .0100 entitled "Point Source Discharges to
the Surface Waters," which incorporates, supplements and
elaborates on the federal rules for stormwater NPDES
discharges.
(b) Other stormwater control requirements are addressed in this
Section but may also be addressed in sections dedicated to
particular water classifications or circumstances. Projects
located in urbanizing areas, which are not subject to NPDES
permitting, must obtain permits in accordance with Rules .1014
through .1017 of this Section. For post-construction
requirements, a program will be deemed compliant for the areas
that satisfy Rule .1017(a)(9) of this Section.
History Note: Authority G.S. 143-214.1; 143-214.7; 143-
215.1; 143-215.3(a)(1);
Eff. Pending Legislative Review.
15A NCAC 02H .1015 URBANIZING AREA
DEFINITIONS
The definition of any word or phrase for Urbanizing Areas shall
be as follows:
(1) The definitions set out in 40 Code of Federal
Regulations § 122.2 and § 122.26(b) (1 July
2003 Edition).
(2) The definitions set out in G.S. 143-212 and
G.S. 143-213.
(3) The definitions set out in 15A NCAC 02H
.0103.
(4) The definitions set out in Rule .1002 of this
Section, except for the definitions of
"Development" and "Redevelopment", which
are defined below.
(5) "One-year, 24-hour storm" means a rainfall of
an intensity expected to be equaled or
exceeded, on average, once in 12 months and
with a duration of 24 hours.
(6) "BMP" means Best Management Practice.
(7) "Development" means any land-disturbing
activity that increases the amount of built-upon
area or that otherwise decreases the infiltration
of precipitation into the soil.
(8) "Division" means the Division of Water
Quality in the Department.
(9) "Planning jurisdiction" means the territorial
jurisdiction within which a municipality
exercises the powers authorized by G.S. 160A-
19, or a county may exercise the powers
authorized by G.S. 153A-18.
(10) "Public entity" means the United States; the
State; a city, village, township, county, school
district, public college or university, or single-purpose
governmental agency; or any other
governing body that is created by federal or
State law.
(11) "Redevelopment" means any land-disturbing
activity that does not result in a net increase in
built-upon area and that provides greater or
equal stormwater control than the previous
development.
(12) "Regulated entity" means any public entity
that must obtain a Phase II National Pollutant
Discharge Elimination System (NPDES)
permit for stormwater management for its
municipal separate storm sewer system (MS4).
(13) "Sensitive receiving waters" means any of the
following:
(14) Waters that are classified as high quality,
outstanding resource, shellfish, trout, or
nutrient-sensitive waters in accordance with
subsections (d) and (e) of 15A NCAC 02B
.0101.
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(15) Waters that are occupied by or designated as
critical habitat for aquatic animal species that
are listed as threatened or endangered by the
United States Fish and Wildlife Service or the
National Marine Fisheries Service under the
provisions of the Endangered Species Act of
1973 (Pub. L. No. 93-205; 87 Stat. 884; 16
U.S.C. §§ 1531, et seq.), as amended.
(16) Waters for which the designated use, as
described by the classification system set out
in subsections (c), (d), and (e) of 15A NCAC
02B .0101, have been determined to be
impaired in accordance with the requirements
of subsection (d) of 33 U.S.C. § 1313.
(17) "Significant contributor of pollutants" means a
municipal separate storm sewer system (MS4)
or a discharge that contributes to the pollutant
loading of a water body or that destabilizes the
physical structure of a water body such that the
contribution to pollutant loading or the
destabilization may reasonably be expected to
adversely affect the quality and uses of the
water body. Uses of a water body shall be
determined pursuant to 15A NCAC 02B .0211
through 15A NCAC 02B .0222 and 15A
NCAC 02B .0300, et seq.
(18) "Total maximum daily load (TMDL)
implementation plan" means a written,
quantitative plan and analysis for attaining and
maintaining water quality standards in all
seasons for a specific water body and
pollutant.
History Note: Authority G.S. 143-214.1; 143-214.7; 143-
215.1; 143-215.3(a)(1);
Eff. Pending Legislative Review.
15A NCAC 02H .1016 DEVELOPMENT IN
URBANIZING AREAS
(a) Development in Unincorporated Areas of Counties.
(1) Development that cumulatively disturbs one
acre or more of land located in the
unincorporated area of a county shall comply
with the standards set forth in Rule .1018 of
this Section beginning 1 July 2007 if the
development is located in:
(A) An area that is designated as an
urbanized area under the most recent
federal decennial census.
(B) The unincorporated area of a county
outside of a municipality designated
as an urbanized area under the most
recent federal decennial census that
extends:
(i) One mile beyond the
corporate limits of a
municipality with a
population of less than
10,000 individuals.
(ii) Two miles beyond the
corporate limits of a
municipality with a
population of 10,000 or
more individuals but less
than 25,000 individuals.
(iii) Three miles beyond the
corporate limits of a
municipality with a
population of 25,000 or
more individuals.
(C) An area delineated pursuant to Item
(2) of this Paragraph.
(D) A county that contains an area that is
designated as an urbanized area under
the most recent federal decennial
census in which the unduplicated sum
of: (i) the area that is designated as an
urbanized area under the most recent
federal decennial census; (ii) the area
described in Subparagraph (1)(B) of
this Paragraph; (iii) the area
delineated pursuant to Item (2) of this
Paragraph; (iv) the jurisdiction of a
regulated entity designated pursuant
to Paragraph (c) of this Rule; (v) the
area that is regulated by a Phase II
National Pollutant Discharge
Elimination System (NPDES) permit
for stormwater management required
pursuant to 15A NCAC 02H
.0151(b); and (vi) areas in the county
that are subject to any of the
stormwater management programs
administered by the Division equal or
exceed 75 percent of the total
geographic area of the county. For
purposes of this subdivision, the
stormwater programs administered by
the Division are:
(i) Water Supply Watershed I
(WS-I) – 15A NCAC 02B
.0212;
(ii) Water Supply Watershed II
(WS-II) – 15A NCAC 02B
.0214;
(iii) Water Supply Watershed III
(WS-III) – 15A NCAC 02B
.0215;
(iv) Water Supply Watershed IV
(WS-IV) – 15A NCAC 02B
.0216;
(v) High Quality Waters (HQW)
– Rule .1006 of this Section;
(vi) Outstanding Resource
Waters (ORW) – Rule .1007
of this Section;
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(vii) The Coastal Stormwater
Program – Rule .1005 of this
Section;
(viii) The Neuse River Basin
Nutrient Sensitive Waters
(NSW) Management
Strategy – 15A NCAC 02B
.0235;
(ix) The Tar-Pamlico River
Basin Nutrient Sensitive
(NSW) Management
Strategy – 15A NCAC 02B
.0258;
(x) The Randleman Lake Water
Supply Watershed Nutrient
Management Strategy – 15A
NCAC 02B .0251; and
(xi) Other Environmental
Management Commission
Nutrient Sensitive Waters
(NSW) Classifications –
15A NCAC 02B .0223.
(E) A county that contains an area that is
designated as an urbanized area under
the 1990 or 2000 federal decennial
census and that has an actual
population growth rate that exceeded
the State population growth rate for
the period 1995 through 2004.
(2) Delineation Process. The Commission shall
delineate regulated coverage areas as follows:
(A) Schedule: The Commission shall
implement the delineation process in
accordance with the schedule for
review and revision of basinwide
water quality management plans as
provided in G.S. 143-215.8B(c).
(B) Potential candidate coverage areas. A
potential candidate coverage area is
the unincorporated area of a county
that is outside a municipality
designated as a regulated entity
pursuant to Items (2) and (3) of
Paragraph (c) that:
(i) Extends one mile beyond the
corporate limits of a
municipality with a
population of less than
10,000 individuals;
(ii) Extends two miles beyond
the corporate limits of a
municipality with a
population of 10,000 or
more individuals but less
than 25,000 individuals; and
(iii) Extends three miles beyond
the corporate limits of a
municipality with a
population of 25,000 or
more individuals.
(C) Identification of candidate coverage
areas. The Commission shall identify
an area within a potential candidate
coverage area described in
Subparagraph (2)(B) of this
Paragraph as a candidate coverage
area if the discharge of stormwater
within or from the unincorporated
area has the potential to adversely
impact water quality. An adverse
impact on water quality includes any
activity that violates water quality
standards, including, but not limited
to, any activity that impairs
designated uses or that has a
significant biological or habitat
impact.
(D) Notice and comment on candidacy.
The Commission shall notify each
public entity that is located in whole
or in part in a candidate coverage
area. After notification of each public
entity, the Commission shall publish
a map of the unincorporated areas
within the river basin that have been
identified as candidates for
delineation as regulated coverage
areas. The Commission shall accept
public comment on the proposed
delineation of a candidate coverage
area as a regulated coverage area for a
period of not less than 30 days.
(E) Delineation of regulated coverage
areas. After review of public
comment, the Commission shall
delineate regulated coverage areas.
The Commission shall delineate a
candidate coverage area as a
regulated coverage area only if the
Commission determines that the
discharge of stormwater within or
from the candidate coverage area
either:
(i) Adversely impacts water
quality.
(ii) Results in a significant
contribution of pollutants to
sensitive receiving waters,
taking into account the
effectiveness of other
applicable water quality
protection programs. To
determine the effectiveness
of other applicable water
quality protection programs,
the Commission shall
consider the water quality of
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2500
the receiving waters and
whether the waters support
the uses set out in
Paragraphs (c), (d), and (e)
of 15A NCAC 02B .0101
(Procedures for Assignment
of Water Quality Standards
– General Procedures) and
the specific classification of
the waters set out in 15A
NCAC 02B .0300, et seq.
(Assignment of Stream
Classifications).
(F) Notice of delineation. The
Commission shall provide written
notice to each public entity that is
located in whole or in part in a
candidate coverage area of its
delineation determination. The notice
shall state the basis for the
determination.
(3) Except as provided in this Item (3) of this
Paragraph and Paragraph (d) of this Rule, the
Commission shall administer and enforce the
standards for development in the regulated
coverage areas. To the extent authorized by
law, where the development is located in a
municipal planning jurisdiction, the
municipality shall administer and enforce the
standards. A public entity may request that the
Commission delegate administration and
enforcement of the stormwater management
program to the public entity as provided in
Paragraph (d) of this Rule.
(b) Development in Non-Phase II Incorporated Areas in Certain
Counties. Development that cumulatively disturbs one acre or
more of land located in the incorporated areas of a county
described in Subparagraphs (2)(D) and (E) of Paragraph (a), that
are not designated as an urbanized area under the most recent
federal decennial census, shall comply with the standards set
forth in Rule .1018 of this Section beginning 1 July 2007. The
Commission shall administer and enforce the standards for
development unless the public entity requests that the
Commission delegate administration and enforcement of the
stormwater management program to the public entity as
provided in Paragraph (d) of this Rule.
(c) Designation of Regulated Entities. A public entity that owns
or operates a municipal separate storm sewer system (MS4) may
be designated as a regulated entity through federal designation,
through a State designation process, or under a total maximum
daily load (TMDL) implementation plan as provided in this
section.
(1) Federal designation. A public entity that owns
or operates a municipal separate storm sewer
system (MS4) may be designated as a
regulated entity pursuant to 40 Code of
Federal Regulations § 122.32 (1 July 2003
Edition).
(2) State designation process. The Commission
shall designate a public entity that owns or
operates a municipal separate storm sewer
system (MS4) as a regulated entity as follows:
(A) Designation schedule. The
Commission shall implement the
designation process in accordance
with the schedule for review and
revision of basinwide water quality
management plans as provided in
G.S. 143-215.8B(c).
(B) Identification of candidate regulated
entities. The Commission shall
identify a public entity as a candidate
for designation as a regulated entity if
the municipal separate storm sewer
system (MS4) either:
(i) Discharges stormwater that
has the potential to adversely
impact water quality. An
adverse impact on water
quality includes any activity
that causes or contributes to
a violation of water quality
standards, including, but not
limited to, any activity that
impairs designated uses or
that has a significant
biological or habitat impact.
(ii) Serves a public entity that
has not been designated
pursuant to Item (1) of this
Paragraph and that has either
a population of more than
10,000 or more than 4,000
housing units and either a
population density of 1,000
people per square mile or
more or more than 400
housing units per square
mile.
(C) Notice and comment on candidacy.
The Commission shall notify each
public entity identified as a candidate
for designation as a regulated entity.
After notification of each public
entity, the Commission shall publish
a list of all public entities within a
river basin that have been identified
as candidates for designation. The
Commission shall accept public
comment on the proposed designation
of a public entity as a regulated entity
for a period of not less than 30 days.
(D) Designation of regulated entities.
After review of the public comment,
the Commission shall make a
determination on designation for each
of the candidate public entities. The
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Commission shall designate a
candidate public entity that owns or
operates a municipal separate storm
sewer system (MS4) as a regulated
public entity only if the Commission
determines either that:
(i) The public entity has an
actual population growth
rate that exceeds 1.3 times
the State population growth
rate for the previous 10
years.
(ii) The public entity has a
projected population growth
rate that exceeds 1.3 times
the projected State
population growth rate for
the next 10 years.
(iii) The public entity has an
actual population increase
that exceeds 15 percent of its
previous population for the
previous two years.
(iv) The municipal separate
storm sewer system (MS4)
discharges stormwater that
adversely impacts water
quality.
(v) The municipal separate
storm sewer system (MS4)
discharges stormwater that
results in a significant
contribution of pollutants to
receiving waters, taking into
account the effectiveness of
other applicable water
quality protection programs.
To determine the
effectiveness of other
applicable water quality
protection programs, the
Commission shall consider
the water quality of the
receiving waters and
whether the waters support
the uses set out in
Paragraphs (c), (d), and (e)
of 15A NCAC 02B .0101
(Procedures for Assignment
of Water Quality Standards
– General Procedures) and
the specific classification of
the waters set out in 15A
NCAC 02B .0300, et seq.
(Assignment of Stream
Classifications).
(E) Notice of designation. The
Commission shall provide written
notice to each public entity of its
designation determination. For a
public entity designated as a
regulated entity, the notice shall state
the basis for the designation and the
date on which an application for a
Phase II National Pollutant Discharge
Elimination System (NPDES) permit
for stormwater management must be
submitted to the Commission.
(F) Application schedule. A public entity
that has been designated as a
regulated entity pursuant to this
subdivision must submit its
application for a Phase II National
Pollutant Discharge Elimination
System (NPDES) permit for
stormwater management within 18
months of the date of notification.
(3) Designation under a total maximum daily load
(TMDL) implementation plan. The
Commission shall designate an owner or
operator of a small municipal separate storm
sewer system (MS4) as a regulated entity if the
municipal separate storm sewer system (MS4)
is specifically listed by name as a source of
pollutants for urban stormwater in a total
maximum daily load (TMDL) implementation
plan developed in accordance with subsections
(d) and (e) of 33 U.S.C. § 1313. The
Commission shall provide written notice to
each public entity of its designation
determination. For a public entity designated
as a regulated entity, the notice shall state the
basis for the designation and the date on which
an application for a Phase II National Pollutant
Discharge Elimination System (NPDES)
permit for stormwater management must be
submitted to the Commission. A public entity
that has been designated as a regulated entity
pursuant to this subdivision must submit its
application for a Phase II National Pollutant
Discharge Elimination System (NPDES)
permit for stormwater management within 18
months of the date of notification.
(d) Delegation. A public entity that does not administer a Phase
II National Pollutant Discharge Elimination System (NPDES)
permit for stormwater management throughout the entirety of its
planning jurisdiction and whose planning jurisdiction includes a
regulated coverage area under Paragraphs (a) and (b) of this Rule
may submit a stormwater management program for its regulated
coverage area or a portion of its regulated coverage area to the
Commission for approval pursuant to G.S. 143-214.7(c). An
ordinance or regulation adopted by a public entity shall at least
meet and may exceed the minimum requirements of Rule .1018
of this Section. Two or more public entities are authorized to
establish a joint program and to enter into any agreements that
are necessary for the proper administration and enforcement of
the program. The resolution, memorandum of agreement, or
other document that establishes any joint program must be duly
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2502
recorded in the minutes of the governing body of each public
entity participating in the program, and a certified copy of each
resolution must be filed with the Commission. The Commission
shall review each proposed program submitted to it to determine
whether the submission is complete. Within 90 days after the
receipt of a complete submission, the Commission shall notify
the public entity submitting the program that it has been
approved, approved with modifications, or disapproved. The
Commission shall only approve a program upon determining
that its standards equal or exceed those of Rule .1018 of this
Section. If the Commission determines that any public entity is
failing to administer or enforce an approved stormwater
management program, it shall notify the public entity in writing
and shall specify the deficiencies of administration and
enforcement. If the public entity has not taken corrective action
within 30 days of receipt of notification from the Commission,
the Commission shall assume administration and enforcement of
the program until such time as the public entity indicates its
willingness and ability to resume administration and
enforcement of the program.
History Note: Authority G.S. 143-214.1; 143-214.7; 143-
215.1; 143-215.3(a)(1);
Eff. Pending Legislative Review.
15A NCAC 02H .1017 POST-CONSTRUCTION
PRACTICES
(a) Requirements for Post-Construction Practices.
(1) Permittees, delegated programs, and regulated
entities must require stormwater controls for a
project that disturbs one acre or more of land,
including a project that disturbs less than one
acre of land that is part of a larger common
plan of development or sale. Whether an
activity or project that disturbs less than one
acre of land is part of a larger common plan of
development shall be determined in a manner
consistent with the memorandum referenced as
"Guidance Interpreting Phase 2 Stormwater
Requirements" from the Director of the DWQ
of the DENR to Interested Parties dated 24
July 2006. The stormwater controls shall be
appropriate to the project's level of density as
follows:
(A) Low Density Option. A project that
is located within any of the coastal
counties is a low density project if it
meets the low density requirements of
Rule .1005 of this Section. A project
that is not located within any of the
coastal counties is a low density
project if it contains no more than 24
percent built-upon area or no more
than two dwelling units per acre.
Low density projects must use
vegetated conveyances to the
maximum extent practicable to
transport stormwater runoff from the
project. On-site stormwater treatment
devices such as infiltration areas,
bioretention areas, and level spreaders
may also be used as added controls
for stormwater runoff. A project with
an overall density at or below the low
density thresholds, but containing
areas with a density greater than the
overall project density, may be
considered low density as long as the
project meets or exceeds the
requirements of this Subparagraph
(1)(A) and locates the higher density
development in upland areas and
away from surface waters and
drainageways to the maximum extent
practicable.
(B) High Density Option. A project that
is located within any of the coastal
counties is a high density project if it
meets the high density requirements
of Rule .1005 of this Section. A
project that is not located within any
of the coastal counties is a high
density project if it contains more
than 24 percent built-upon area or
more than two dwelling units per
acre. High density projects must use
structural stormwater management
systems that will control and treat
runoff from the first one inch of rain.
The structural stormwater
management system must also meet
the following design standards:
(i) Draw down the treatment
volume no faster than 48
hours, but no slower than
120 hours.
(ii) Discharge the storage
volume at a rate equal to or
less than the predevelopment
discharge rate for the one-year,
24-hour storm.
(iii) Remove an 85 percent
average annual amount of
Total Suspended Solids.
(iv) Meet the General
Engineering Design Criteria
set out in Rule .1008(c) of
this Section.
(v) Wet detention ponds
designed in accordance with
the requirements of Item (6)
of this Paragraph may be
used for projects draining to
Class SA waters.
(2) Permittees, delegated programs, and regulated
entities must require built-upon areas to be
located at least 30 feet landward of all
perennial and intermittent surface waters. For
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2503
purposes of Paragraph (a), a surface water
shall be present if the feature is shown on
either the most recent version of the soil
survey map prepared by the Natural Resources
Conservation Service of the United States
Department of Agriculture or the most recent
version of the 1:24,000 scale (7.5 minute)
quadrangle topographic maps prepared by the
United States Geologic Survey (USGS).
Relief from this requirement may be allowed
when surface waters are not present in
accordance with the provisions of 15A NCAC
02B .0233(3)(a). In addition, an exception to
this requirement may be pursued in accordance
with Paragraph (c) of this Rule.
(3) Permittees, delegated programs, and regulated
entities must implement or require a fecal
coliform reduction program that controls, to
the maximum extent practicable, the sources
of fecal coliform. At a minimum, the program
shall include the development and
implementation of an oversight program to
ensure proper operation and maintenance of
on-site wastewater treatment systems for
domestic wastewater. For municipalities, this
program may be coordinated with local county
health departments.
(4) Permittees, delegated programs, and regulated
entities must impose or require recorded
restrictions and protective covenants to be
recorded on the property in the Office of the
Register of Deeds in the county where the
property is located prior to the issuance of a
certificate of occupancy in order to ensure that
development activities will maintain the
project consistent with approved plans.
(5) Permittees, delegated programs, and regulated
entities must implement or require an
operation and maintenance plan that ensures
the adequate long-term operation of the
structural best management practices (BMP)
required by the program. The operation and
maintenance plan must require the owner of
each structural BMP to submit a maintenance
inspection report on each structural BMP
annually to the local program.
(6) For areas draining to Class SA waters,
permittees, delegated programs, and regulated
entities must:
(A) Use BMPs that result in the highest
degree of fecal coliform die-off and
control to the maximum extent
practicable sources of fecal coliform
while still incorporating the
stormwater controls required by the
project's density level.
(B) Implement a program to control the
sources of fecal coliform to the
maximum extent practicable,
including a pet waste management
component, which may be achieved
by revising an existing litter
ordinance, and an on-site domestic
wastewater treatment systems
component to ensure proper operation
and maintenance of such systems,
which may be coordinated with local
county health departments.
(C) Meet the requirements of Rule
.1005(a)(2) of this Section.
(7) For areas draining to Trout Waters, permittees,
delegated programs, and regulated entities
must:
(A) Use BMPs that avoid a sustained
increase in the receiving water
temperature, while still incorporating
the stormwater controls required for
the project's density level.
(B) Allow on-site stormwater treatment
devices such as infiltration areas,
bioretention areas, and level spreaders
as added controls.
(8) For areas draining to Nutrient Sensitive
Waters, permittees, delegated programs, and
regulated entities must:
(A) Use BMPs that reduce nutrient
loading, while still incorporating the
stormwater controls required for the
project's density level. In areas where
the Department has approved a
Nutrient Sensitive Water Urban
Stormwater Management Program,
the provisions of that program fulfill
the nutrient loading reduction
requirement. Nutrient Sensitive Water
Urban Stormwater Management
Program requirements are found in
15A NCAC 02B .0200.
(B) Implement a nutrient application
management program for both
inorganic fertilizer and organic
nutrients to reduce nutrients entering
waters of the State.
(9) For post-construction requirements, a program
will be deemed compliant for the areas where
it is implementing any of the following
programs:
(A) Water Supply Watershed I (WS-I) –
15A NCAC 02B .0212;
(B) Water Supply Watershed II (WS-II) –
15A NCAC 02B .0214;
(C) Water Supply Watershed III (WS-III)
– 15A NCAC 02B .0215;
(D) Water Supply Watershed IV (WS-IV)
– 15A NCAC 02B .0216;
(E) Freshwater High Quality Waters
(HQW) – Rule .1006 of this Section;
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(F) Freshwater Outstanding Resource
Waters (ORW) – Rule .1007 of this
Section;
(G) The Neuse River Basin Nutrient
Sensitive Waters (NSW)
Management Strategy – 15A NCAC
02B .0235;
(H) The Tar-Pamlico River Basin
Nutrient Sensitive (NSW)
Management Strategy – 15A NCAC
02B .0258; or
(I) The Randleman Lake Water Supply
Watershed Nutrient Management
Strategy – 15A NCAC 02B .0251.
(10) In order to fulfill the post-construction
minimum measure program requirement, a
permittee, delegated program, or regulated
entity may use the Department's model
ordinance, design its own post-construction
practices based on the Department's guidance
on scientific and engineering standards for
BMPs, incorporate the post-construction
model practices described in this act, or
develop its own comprehensive watershed
plan that is determined by the Department to
meet the post-construction stormwater
management measure required by 40 Code of
Federal Regulations § 122.34(b)(5) (1 July
2003 Edition).
(11) Nothing in this Paragraph (a) shall limit,
expand, or alter the requirement that a
discharge fully comply with all applicable
State or federal water quality standards.
(b) Exclusions from Post-Construction Practices. The post-construction
practices required by Paragraph (a) of this act shall
not apply to any of the following:
(1) Development in an area where the
requirements of Paragraph (a) of this act are
applicable that is conducted pursuant to one of
the following authorizations, provided that the
authorization was obtained prior to the
effective date of the post-construction
stormwater control requirements in the area
and the authorization is valid, unexpired,
unrevoked, and not otherwise terminated:
(A) A building permit pursuant to G.S.
153A-357 or G.S. 160A-417;
(B) A site-specific development plan as
defined by G.S. 153A-344.1(b)(5)
and G.S. 160A-385.1(b)(5);
(C) A phased development plan approved
pursuant to G.S. 153A-344.1 for a
project located in the unincorporated
area of a county that is subject to the
requirements of Paragraph (a), if the
Commission is responsible for
implementation of the requirements
of Paragraph (a), that shows:
(i) For the initial or first phase
of development, the type and
intensity of use for a specific
parcel or parcels, including
at a minimum, the
boundaries of the project and
a subdivision plan that has
been approved pursuant to
G.S. 153A-330 through G.S.
153A-335.
(ii) For any subsequent phase of
development, sufficient
detail so that implementation
of the requirements of
Paragraph (a) to that phase
of development would
require a material change in
that phase of the plan.
(D) A vested right to the development
under G.S. 153A-344(b), 153A-
344.1, 160A-385(b), or 160A-385.1
issued by a local government that
implements Paragraph (a); or
(E) A vested right to the development
pursuant to common law.
(2) Redevelopment as defined in Rule .1015 of
this Section.
(c) Exceptions. The Department or an appropriate local
authority, pursuant to Article 18 of G.S. 153A or Article 19 of
G.S. 160A, may grant exceptions from the 30-foot landward
location of built-upon area requirement as well as the deed
restrictions and protective covenants requirement as follows:
(1) An exception may be granted if the application
meets all of the following criteria:
(A) Unnecessary hardships would result
from strict application of the act;
(B) The hardships result from conditions
that are peculiar to the property, such
as the location, size, or topography of
the property;
(C) The hardships did not result from
actions taken by the petitioner; and
(D) The requested exception is consistent
with the spirit, purpose, and intent of
this act; will protect water quality;
will secure public safety and welfare;
and will preserve substantial justice.
Merely proving that the exception
would permit a greater profit from the
property shall not be considered
adequate justification for an
exception.
(2) Notwithstanding Item (1) of this Paragraph,
exceptions shall be granted in any of the
following instances:
(A) When there is a lack of practical
alternatives for a road crossing,
railroad crossing, bridge, airport
facility, or utility crossing as long as
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it is located, designed, constructed,
and maintained to minimize
disturbance, provide maximum
nutrient removal, protect against
erosion and sedimentation, have the
least adverse effects on aquatic life
and habitat, and protect water quality
to the maximum extent practicable
through the use of BMPs.
(B) When there is a lack of practical
alternatives for a stormwater
management facility; a stormwater
management pond; or a utility,
including, but not limited to, water,
sewer, or gas construction and
maintenance corridor, as long as it is
located 15 feet landward of all
perennial and intermittent surface
waters and as long as it is located,
designed, constructed, and
maintained to minimize disturbance,
provide maximum nutrient removal,
protect against erosion and
sedimentation, have the least adverse
effects on aquatic life and habitat, and
protect water quality to the maximum
extent practicable through the use of
BMPs.
(C) A lack of practical alternatives may
be shown by demonstrating that,
considering the potential for a
reduction in size, configuration, or
density of the proposed activity and
all alternative designs, the basic
project purpose cannot be practically
accomplished in a manner which
would avoid or result in less adverse
impact to surface waters.
(3) Reasonable and appropriate conditions and
safeguards may be imposed upon any
exception granted.
(4) Local authorities must document the exception
procedure and submit an annual report to the
Department on all exception proceedings.
(5) Appeals of the Department's exception
decisions must be filed with the Office of
Administrative Hearings, under G.S. 150B-23.
Appeals of a local authority's exception
decisions must be made to the appropriate
Board of Adjustment or other appropriate local
governing body, under G.S. 160A-388 or G.S.
153A-345.
History Note: Authority G.S. 143-214.1; 143-214.7; 143-
215.1; 143-215.3(a)(1);
Eff. Pending Legislative Review.
* * * * * * * * * * * * * * * * * * * *
15A NCAC 13B .1604 GENERAL REQUIREMENTS
FOR MSWLF FACILITIES
(a) Applicability. Permits issued by the Division for new and
existing MSWLF facilities are subject to the requirements set
forth in this Rule.
(b) Terms of the Permit. The Solid Waste Management Permit
shall incorporate requirements necessary to comply with this
Subchapter and the North Carolina Solid Waste Management
Act including the provisions of this Paragraph.
(1) Division Approved Plan. Permits issued
subsequent to March 9, 1993 shall incorporate
a Division approved plan.
(A) The scope of the Division approved
plan shall be limited to the
information necessary to comply with
the requirements set forth in Rule
.1617 of this Section.
(B) The Division approved plans are
subject to and may be limited by the
conditions of the permit.
(C) The Division approved plans for a
new facility or permit renewal of an
existing facility shall be described in
the permit and shall include the
following:
(i) Facility plan;
(ii) Engineering plan and
Construction Quality
Assurance Plan;
(iii) Operation plan;
(iv) Monitoring plan; and
(v) Closure and post-closure
plan.
(2) Permit provisions. All disposal facilities shall
conform to the conditions set forth in the
permit and the following provisions. Nothing
in this Subparagraph shall be construed to
limit the conditions the Division may
otherwise impose on a permit:
(A) Duty to Comply. The permittee shall
comply with all conditions of the
permit.
(B) Duty to Mitigate. In the event of
noncompliance with the permit, the
permittee shall take all reasonable
steps to minimize releases to the
environment, and shall carry out such
measures as are reasonable to prevent
adverse impacts on human health or
the environment.
(C) Duty to Provide Information. The
permittee shall furnish to the
Division, any relevant information
which the Division may request to
determine whether cause exists for
modifying or revoking this permit, or
to determine compliance with this
permit. The permittee shall also
furnish to the Division, upon request,
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